The trajectory of trauma: Bodies and minds of abortion discourse

Columbia Law Review

Volumn 110, Issue 5, 2010, Pages 1193-1252

  Suk, Jeannie ^a  

^a HARVARD LAW SCHOOL   (United States)

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EID: 77954462474     PISSN: 00101958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (531)

1. 550 U.S. 124 (2007).
2. Partial-Birth Abortion Ban Act of 2003, 18 U.S.C. § 1531 (2006).
3. E.g., Carole Joffe, The Abortion Procedure Ban: Bush's Gift to His Base, Dissent, Fall 2007, at 57;
4. Katha Pollitt, Regrets Only, The Nation, May 14, 2007, at 9 [hereinafter Pollitt, Regrets Only];
5. Jeffrey Toobin, Five to Four, New Yorker, June 25, 2007, at 35;
6. Joanna Grossman & Linda McClain, Gonzales v. Carhart: How the Supreme Court's Validation of the Federal Partial-Birth Abortion Ban Act Affects Women's Constitutional Liberty and Equality, Findlaw, May 7, 2007, at http://writ.news.findlaw.com/commentary/20070507-mcclain.html (on file with the Columbia Law Review); Dahlia Lithwick, Father Knows Best: Dr. Kennedy's Magic Prescription for Indecisive Women, Slate, Apr. 18, 2007, at http://www.slate. com/id/2164512 (on file with the Columbia Law Review).
7. Carhart, 550 U.S. at 159 (citing Brief of Sandra Cano, the Former "Mary Doe" of Doe v. Bolton, and 180 Women Injured by Abortion as Amici Curiae in Support of Petitioner at 22-24, Carhart, 550 U.S. 124 (No. 05-380), 2006 WL 1436684 [hereinafter Cano Brief]).
8. Id.
9. Id. at 159-60.
10. E.g., Eileen Fegan, Reclaiming Women's Agency: Exposing the Mental Health Effects of "Post-Abortion Syndrome" Propaganda, in Women, Madness, and the Law 169 (Wendy Chan et al. eds., 2005);
11. Ellie Lee, Reinventing Abortion as a Social Problem: "Postabortion Syndrome" in the United States and Britain, in How Claims Spread: Cross-National Diffusion of Social Problems 39 (Joel Best ed., 2001);
12. Reva B. Siegel, The New Politics of Abortion: An Equality Analysis of Woman-Protective Abortion Restrictions, 2007 U. Ill. L. Rev. 991, 1014 [hereinafter Siegel, New Politics];
13. Emily Bazelon, Is There a Post-Abortion Syndrome?, N.Y. Times, Jan. 21, 2007, § 6 (Magazine), at 41 [hereinafter Bazelon, PAS];
14. Reva Siegel & Sarah Blustain, Mommy Dearest?, Am. Prospect, Oct. 2006, at 22; cf. Francis J. Beckwith, Taking Abortion Seriously: A Philosophical Critique of the New Anti-Abortion Rhetorical Shift, 17 Ethics & Med. 155 (2001) (arguing against new rhetorical strategy that stresses harm to women rather than fetal humanity because it implies that moral wrong of abortion depends on whether women suffer).
15. For examples of commentators expressing concern at the psychological trauma argument in Carhart, see, e.g., Tracy Bach, High Noon in the Abortion Battle? Roe "Reality" Post Gonzales v. Carhart, 32 Vt. L. Rev. 663 (2008);
16. Michael C. Dorf, Abortion Rights, 23 Touro L. Rev. 815, 826 (2008);
17. Rebecca Dresser, From Double Standard to Double Bind: Informed Choice in Abortion Law, 76 Geo. Wash. L. Rev. 1599 (2008);
18. Linda Greenhouse, How the Supreme Court Talks About Abortion: The Implications of a Shifting Discourse, 42 Suffolk U. L. Rev. 41 (2008) [hereinafter Greenhouse, Shifting Discourse];
19. Maya Manian, The Irrational Woman: Informed Consent and Abortion Decision-Making, 16 Duke J. Gender L. & Pol'y 223, 254-62 (2009);
20. Robert Post & Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 Harv. C.R.-C.L. L. Rev. 373, 431-32 (2007);
21. Reva B. Siegel, Dignity and the Politics of Protection: Abortion Restrictions Under Casey/Carhart, 117 Yale L.J. 1694 (2008) [hereinafter Siegel, Dignity];
22. Reva B. Siegel, The Right's Reasons: Constitutional Conflict and the Spread of Woman-Protective Antiabortion Argument, 57 Duke L.J. 1641 (2008) [hereinafter Siegel, Right's Reasons];
23. Priscilla J. Smith, Responsibility for Life: How Abortion Serves Women's Interests in Motherhood, 17 J.L. & Pol'y 97, 141-44 (2008);
24. Ronald Turner, Gonzales v. Carhart and the Court's "Women's Regret" Rationale, 43 Wake Forest L. Rev. 1 (2008);
25. Sarah Blustain, Beyond Regret, Am. Prospect, July/Aug. 2007, at 11 [hereinafter Blustain, Beyond Regret];
26. Sarah Blustain, The Mourning After: Men with "Post-Abortion Syndrome" Are the New Poster Children for the Right-to-Life Movement, The Nation, Feb. 4, 2008, at 11, 13 [hereinafter Blustain, Mourning After];
27. Tony Mauro, Kennedy Redefines "Swing Vote" in Abortion Ruling, Recorder (S.F.), Apr. 23, 2007, at 3;
28. Emily Bazelon, Telling Doctors What to Think, Slate, July 2, 2008, at http://www.slate.com/id/2194605 (on file with the Columbia Law Review) [hereinafter Bazelon, Telling Doctors]; sources cited supra note 3. But cf. Robin Toner, Abortion Foes See Validation for New Tactic, N.Y. Times, May 22, 2007, at Al (discussing response of pro-life parties to Carhart argument).
29. 410 U.S. 113 (1973).
30. 505 U.S. 833 (1992).
31. Jill Elaine Hasday, Protecting Them from Themselves: The Persistence of Mutual Benefits Arguments for Sex and Race Inequality, 84 N.Y.U. L. Rev. 1464, 1528-29 (2009);
32. Siegel, Dignity, supra note 8, at 1705;
33. Siegel, New Politics, supra note 7, at 994;
34. Siegel, Right's Reasons, supra note 8, at 1688;
35. Rebecca E. Ivey, Note, Destabilizing Discourses: Blocking and Exploiting a New Discourse at Work in Gonzales v. Carhart, 94 Va. L. Rev. 1451, 1497-502 (2008);
36. Editorial, Denying the Right to Choose, N.Y. Times, Apr. 19, 2007, at A26;
37. Ellen Goodman, Editorial, Court's Abortion Ruling Revives 19th-century Paternalism, Balt. Sun, Apr. 27, 2007, at 17A;
38. Siegel & Blustain, supra note 7, at 24;
39. Bazelon, Telling Doctors, supra note 8; Grossman & McClain, supra note 3; Scott Lemieux, They Know Best, Am. Prospect, May 1, 2007, at http://www.prospect.org/cs/articles? article=they-know-best (on file with the Columbia Law Review); Lithwick, supra note 3.
40. Gonzales v. Carhart, 550 U.S. 124, 183-84 (2007) (Ginsburg, J., dissenting).
41. Id. at 183 n.7 (citing articles on post-abortion syndrome).
42. Id. at 185. Justice Ginsburg's dissent tracks Reva Siegel's analysis. See Siegel, New Politics, supra note 7, at 1023-29 (discussing antiabortion movement's strategy for woman-protective arguments for restricting abortion).
43. Linda Greenhouse, Adjudging a Moral Harm to Women from Abortions, N.Y. Times, Apr. 20, 2007, at A18 [hereinafter Greenhouse, Moral Harm].
44. See, e.g., Concise Oxford English Dictionary 1534 (11th ed. 2004) (defining "trauma" as a "deeply distressing experience"and "emotional shock following a stressful event").
45. Allan Young, The Harmony of Illusions: Inventing Post-Traumatic Stress Disorder 107-14 (1995). See generally Wilbur J. Scott, PTSD in DSM-III: A Case in the Politics of Diagnosis and Disease, 37 Soc. Probs. 294 (1990) (describing political process through which post-traumatic stress disorder (PTSD) came to be an official diagnosis).
46. Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 463-68 (4th ed., text rev. 2000) [hereinafter DSM-IV-TR].
47. See, e.g., Alan A. Stone, Post-Traumatic Stress Disorder and the Law: Critical Review of the New Frontier, 21 Bull. Am. Acad. Psychiatry & L. 23, 35 (1993) [hereinafter Stone, PTSD and the Law] (" [I]t would be difficult to overestimate the impact of PTSD on legal doctrine, legal thinking, and legal reality.");
48. Alan A. Stone, Psychiatry and the Law, in The Harvard Guide to Psychiatry 798, 816 (Armand M. Nicholi ed., 1999) (discussing PTSD and tort litigation);
49. Alan A. Stone, Revisiting the Parable: Truth Without Consequences, 17 Int'l J.L. & Psychiatry 79, 93 (1994) ("The victim impact statement is tailor-made for psychiatry's diagnosis of Post-Traumatic Stress Disorder."). See generally Michael J. Davidson, Post-Traumatic Stress Disorder: A Controversial Defense for Veterans of a Controversial War, 29 Wm. & Mary L. Rev. 415 (1988) (reviewing history of PTSD in psychiatry and law).
50. Anne Coughlin warned, for example, that Battered Woman Syndrome reaffirms "invidious understanding of women's capacity for rational self-control . . . [and] thereby exposes women to forms of interference against which men are safe." Anne M. Coughlin, Excusing Women, 82 Cal. L. Rev. 1, 6 (1994).
51. As Martha Chamallas noted: Feminists sought to prohibit many forms of sexual conduct which, although not always overtly resisted by the women involved, were not truly consensual. . . . [T]he feminist critique has profoundly changed the law of rape and is the force behind the recognition of sexual harassment as a prohibited form of sexual abuse. Martha Chamallas, Consent, Equality, and the Legal Control of Sexual Conduct, 61 S. Cal. L. Rev. 777, 796-97 (1988) [hereinafter Chamallas, Consent].
52. For a clarifying explication of what various feminisms share, see Janet Halley, Split Decisions: How and Why to Take a Break from Feminism 17-20 (2006) (stating that in United States, feminism persistently posits distinction between male and female, commitment to be a practice or theory about subordination of female to male, and commitment to work against that subordination).
53. See, e.g., Martha Chamallas, Introduction to Feminist Legal Theory 23-38, 219-81 (2d ed. 2003) (explicating theories of "Equality Stage (1970s)"and "Sexual Subordination of Women"); Rosalind Dixon, Feminist Disagreement (Comparatively) Recast, 31 Harv. J.L. & Gender 277, 279-86 (2008) (discussing differences between, inter alia, liberal feminists and dominance feminists). See generally Ruth Bader Ginsburg, Sex Equality and the Constitution, 52 Tul. L. Rev. 451 (1978);
54. Catharine A. MacKinnon, Feminism, Marxism, Method, and the State: An Agenda for Theory, 7 Signs: J. Women Culture & Soc'y 515 (1982) [hereinafter MacKinnon, Feminism, Marxism, Method, and the State].
55. E.g., Mary Ann Dutton & Lisa A. Goodman, Posttraumatic Stress Disorder Among Battered Women: Analysis of Legal Implications, 12 Behav. Sci. & L. 215, 229 (1994);
56. Martha R. Mahoney, Legal Images of Battered Women: Redefining the Issue of Separation, 90 Mich. L. Rev. 1, 42 (1991);
57. Carine M. Mardorossian, Toward a New Feminist Theory of Rape, 27 Signs: J. Women Culture & Soc'y 743, 770-71 (2002);
58. Jeanne Marecek, Trauma Talk in Feminist Clinical Practice, in New Versions of Victims: Feminists Struggle with the Concept 158, 171 (Sharon Lamb ed., 1999);
59. Melanie Randall, Domestic Violence and the Construction of "Ideal Victims": Assaulted Women's "Image Problems" in Law, 23 St. Louis U. Pub. L. Rev. 107, 121 (2004);
60. Martha Shaffer, The Battered Woman Syndrome Revisited: Some Complicating Thoughts Five Years After R. v. Lavallee, 47 U. Toronto L.J. 1, 8-10 (1997);
61. Evan Stark, Re-Presenting Woman Battering: From Battered Woman Syndrome to Coercive Control, 58 Alb. L. Rev. 973, 975 (1995);
62. Susan Stefan, The Protection Racket: Rape Trauma Syndrome, Psychiatric Labeling, and Law, 88 Nw. U. L. Rev. 1271, 1274 (1994).
63. E.g., Brenda Cossman et al., Gender, Sexuality, and Power: Is Feminist Theory Enough?, 12 Colum. J. Gender & L. 601, 613 (2003);
64. Holly Henderson, Feminism, Foucault, and Rape: A Theory and Politics of Rape Prevention, 22 Berkeley J. Gender L. & Just. 225, 250 (2007);
65. Sharon Lamb, Constructing the Victim: Popular Images and Lasting Labels, in New Versions of Victims, supra note 24, at 113;
66. Sharon Marcus, Fighting Bodies, Fighting Words: A Theory and Politics of Rape Prevention, in Feminists Theorize the Political 385, 394 (Judith Butler & Joan Scott eds., 1992);
67. Pamela Haag, "Putting Your Body on the Line": The Question of Violence, Victims, and the Legacies of Second-Wave Feminism, Differences, J. Feminist Cultural Stud., Summer 1996, at 23, 48, 60.
68. E.g., Gonzales v. Carhart, 550 U.S. 124, 159-60 (2007);
69. Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724, 734 (8th Cir. 2008) (en banc);
70. McCorvey v. Hill, 385 F.3d 846, 850-51 (5th Cir. 2004) (Jones, J., concurring). The argument has influenced legislatures as well. See, e.g., S.D. Codified Laws § 34-23A-10.1(1) (e) (2007) (requiring doctors to inform women that abortion's risks include depression and suicide);
71. S.D. Task Force to Study Abortion, Report of the S.D. Task Force to Study Abortion 4 (2005), available at http://www.voteyesforlife.com/docs/Task-Force- Report.pdf (on file with the Columbia Law Review) [hereinafter S.D. Task Force Report].
72. For this story, I rely on Reva Siegel's essential social movement history of the antiabortion claim that abortion hurts women. See Siegel, Right's Reasons, supra note 8.
73. Josef Breuer & Sigmund Freud, Studies on Hysteria (1893-1895), in 2 Standard Edition of the Complete Psychological Works of Sigmund Freud 221 (James Strachey ed. & trans., 1955) [hereinafter Standard Edition].
74. This Part is informed by numerous works that review the history, theory, and status of modern trauma, especially Judith Herman, Trauma and Recovery: The Aftermath of Violence-From Domestic Abuse to Political Terror (1992) [hereinafter Herman, Trauma and Recovery];
75. Ruth Leys, Trauma: A Genealogy (2000);
76. Richard J. McNally, Remembering Trauma (2003); Young, supra note 17.
77. Elaine Showalter, The Female Malady: Women, Madness, and English Culture, 1830-1980, at 129-30 (1985). For a history of hysteria, see Elaine Showalter, Hystories: Hysterical Epidemics and Modern Media 3-77 (1997).
78. See 7 Oxford English Dictionary 586 (Clarendon 2d ed. 1989).
79. The turn-of-the-century pioneers of trauma psychiatry were Jean-Martin Charcot, Pierre Janet, and Sigmund Freud. See Young, supra note 17, at 19-38 (describing work and theories of each).
80. Breuer & Freud, supra note 28, at 8-11.
81. Id. at 30 (quoting patient Anna O.).
82. See Sigmund Freud, The Aetiology of Hysteria (1896), in 3 Standard Edition, supra note 28, at 191, 199 [hereinafter Freud, The Aetiology of Hysteria] ("[T]he aetiology of hysteria lies in sexual life.").
83. See, e.g., Sigmund Freud, Heredity and the Aetiology of the Neuroses (1896), in 3 Standard Edition, supra note 28, at 143, 152 (stating traumatic event was "a precocious experience of sexual relations with actual excitement of the genitals, resulting from sexual abuse committed by another person . . . [in] the years up to the age of eight to ten, before the child has reached sexual maturity").
84. See Freud, The Aetiology of Hysteria, supra note 35, at 203 ("[A]t the bottom of every case of hysteria there are one or more occurrences of premature sexual experience, occurrences which belong to the earliest years of childhood . . . .").
85. Letter of September 21, 1897, in The Complete Letters of Sigmund Freud to Wilhelm Fliess 1887-1904, 264 at 264-66 (Jeffrey Moussaieff Masson ed. & trans., 1985). In the 1980s, psychoanalyst Jeffrey Masson made the controversial claim that Freud abandoned his seduction theory-which would entail scandalous allegation of widespread incest, rape, and sex abuse in Viennese bourgeois families, McNally, supra note 29, at 162-to protect his professional reputation and "because of a personal failure of courage." Jeffrey Moussaieff Masson, The Assault on Truth: Freud's Suppression of the Seduction Theory 189 (1984).
86. See, e.g., Sigmund Freud, An Autobiographical Study (1925), in 20 Standard Edition, supra note 28, at 7, 34 ("I was at last obliged to recognize that these scenes of seduction had never taken place, and that they were only phantasies which my patients had made up . . . .").
87. The Oedipus Complex is the desire in young children to possess the parent of the opposite sex and eliminate the parent of the same sex. Sigmund Freud, The Interpretation of Dreams (pt. 1), in 4 Standard Edition, supra note 28, at 255-64.
88. See, e.g., Herman, Trauma and Recovery, supra note 29, at 28-30 (discussing feminist movement's study of sexual trauma);
89. cf. Masson, supra note 38, at 9 ("Freud's female patients had the courage to face what had happened to them in childhood-often this included violent scenes of rape by a father-and to communicate their traumas to Freud .... [who] listened and understood and gave them permission to remember and speak of these terrible events.").
90. Susan Brownmiller, Against Our Will: Men, Women and Rape 15 (1975).
91. Herman, Trauma and Recovery, supra note 29, at 28-29;
92. Kathie Sarachild, Consciousness-Raising: A Radical Weapon, in Feminist Revolution 144, 145-46 (Kathie Sarachild ed., 1978).
93. See Herman, Trauma and Recovery, supra note 29, at 28-29. An important 1971 feminist manifesto stated that "through the technique of consciousness raising," women had "discovered that rape is not a personal misfortune but an experience shared by all women in one form or another. . . . The act of rape is the logical expression of the essential relationship now existing between men and women." Lisa Appignanesi, Mad, Bad and Sad: A History of Women and the Mind Doctors from 1800 to the Present 408 (2008) (quoting New York Radical Feminists Manifesto of Shared Rape (1971), available at http:/ /www.sojust.net/documents/radical-feminists.html (on file with the Columbia Law Review) (internal quotation marks omitted)).
94. See Take Back the Night, Calendar of Events, at http://www. takebackthenight.org/calendar/index.php (last visited Feb. 27, 2010) (on file with the Columbia Law Review) (showing schedule of campus rallies).
95. See Appignanesi, supra note 44, at 409 ("Woman as victim became a core identity for American feminism.").
96. Ann Wolbert Burgess & Lynda Lytle Holmstrom, Rape Trauma Syndrome, 131 Am. J. Psychiatry 981 (1974);
97. see also Ann Wolbert Burgess, Putting Trauma on the Radar Screen, in Mapping Trauma and Its Wake: Autobiographic Essays by Pioneer Trauma Scholars 17, 20 (Charles R. Figley ed., 2006) (explaining one motivation for pioneering study of rape victims was coauthor's "understanding of the women's movement").
98. See, e.g., State v. Black, 745 P.2d 12, 16-18 (Wash. 1987) (citing Burgess & Holmstrom, supra note 47, and describing RTS symptoms as "commonly experienced by victims of rape"). There is an extensive legal literature on RTS. See generally Kenneth Winchester Gaines, Rape Trauma Syndrome: Toward Proper Use in the Criminal Trial Context, 20 Am. J. Trial Advoc. 227 (1997) (arguing RTS should be used only to explain victim's behavior seemingly inconsistent with rape, and not as evidence of lack of consent);
99. Arthur H. Garrison, Rape Trauma Syndrome: A Review of Behavioral Science Theory and Its Admissibility in Criminal Trials, 23 Am. J. Trial Advoc. 591 (2000) (arguing RTS is not synonymous with PTSD, and is not a diagnosis, but rather an explanation providing context for behavior of victim, and should not be used to prove she was raped);
100. Holly Hogan, The False Dichotomy of Rape Trauma Syndrome, 12 Cardozo J.L. & Gender 529 (2006) (arguing dichotomy of use of RTS as offensive or defensive testimony hurts both defense and prosecution);
101. Kathryn M. Davis, Note, Rape, Resurrection, and the Quest for Truth: The Law and Science of Rape Trauma Syndrome in Constitutional Balance with the Rights of the Accused, 49 Hastings L.J. 1511 (1998) (arguing, inter alia, since social science cannot conclusively determine that woman's symptoms are caused by rape, defendant should be permitted to "utilize RTS expert testimony . . . [to] rebut[ ] a charge of rape").
102. See Patricia A. Frazier & Eugene Borgida, Rape Trauma Syndrome: A Review of Case Law and Psychological Research, 16 Law & Hum. Behav. 293, 293-94 (1992) ("[RTS] testimony is most often used to corroborate the complainant's claim that intercourse was not consensual . . . ."); Toni M. Massaro, Experts, Psychology, Credibility, and Rape: The Rape Trauma Syndrome Issue and Its Implications for Expert Psychological Testimony, 69 Minn. L. Rev. 395, 440-41 (1984) (stating "evidence that the victim suffers from RTS" increases probability that "victim did not consent");
103. Stefan, supra note 24, at 1319-20 ("Rape trauma testimony has been used ... to rebut defenses of consent. . . and to explain 'counterintuitive' behavior . . . ." (footnotes omitted));
104. see also B.J. Cling, Rape and Rape Trauma Syndrome, in Sexualized Violence Against Women and Children 13, 24 (B.J. Cling ed., 2004) ("[RTS is] powerful evidence favorable to the victim . . . ."); id. at 35-37 (providing comprehensive breakdown of states that do and do not allow expert testimony on RTS as evidence of nonconsent).
105. Cling, supra note 49, at 24.
106. Id.
107. Ann Althouse, Thelma and Louise and the Law: Do Rape Shield Rules Matter?, 25 Loy. L.A. L. Rev. 757, 758 (1992).
108. Catherine L. Kello, Note, Rape Shield Laws-Is It Time for Reinforcement?, 21 U. Mich. J.L. Reform 317, 321 (1987). Rape shield laws also aim to reduce the risk of prejudice to the victim. Joshua Dressier, Understanding Criminal Law 602 (5th ed. 2009).
109. See Michelle J. Anderson, From Chastity Requirement to Sexuality License: Sexual Consent and a New Rape Shield Law, 70 Geo. Wash. L. Rev. 51, 104 (2002) ("[Trauma was] the fundamental concern for most legislators who passed rape shield laws.").
110. See, e.g., Ellen Bass & Laura Davis, The Courage to Heal: A Guide for Women Survivors of Child Sexual Abuse 21 (1988) (listing various forms of child sexual abuse).
111. See, e.g., Daniel Brown et al., Memory, Trauma Treatment, and the Law 290 (1998) (noting connections between repressed memories, hypnosis, and Freud's theories); Renée Fredrickson, Repressed Memories: A Journey to Recovery from Sexual Abuse 56 (1992) (same);
112. Alice Miller, The Drama of the Gifted Child: The Search for the True Self 96 (Ruth Ward ed. & trans., rev. ed. 1997) (noting abuses suffered as child may only be discoverable when individual undertakes therapy as adult);
113. Christine A. Courtois, The Memory Retrieval Process in Incest Survivor Therapy, 1 J. Child Sexual Abuse 15 (1992) (discussing memory repression and retrieval following sexual abuse trauma);
114. Judith Lewis Herman & Emily Schatzow, Recovery and Verification of Memories of Childhood Sexual Trauma, 4 Psychoanalytic Psychol. 1, 1 (1987) ("The connection between a history of childhood sexual trauma and psychological disturbance in adult life was first proposed by Freud . . . .");
115. Karen A. Olio, Memory Retrieval in the Treatment of Adult Survivors of Sexual Abuse, 19 Transactional Analysis J. 93, 93-94 (1989) (noting survivors of abuse often repress all memory of such abuse); Ethel Spector Person & Howard Klar, Establishing Trauma: The Difficulty Distinguishing Between Memories and Fantasies, 42 J. Am. Psychoanalytic Ass'n 1055, 1067 (1994) ("Memories of traumatic events are often repressed or dissociated . . . .").
116. See Diana E.H. Russell, Sexual Exploitation: Rape, Child Sexual Abuse, and Workplace Harassment 35 (1984).
117. See id. at 178 (citing Judith Herman, Father-Daughter Incest 12 (1981)).
118. See, e.g., Sue L. Blume, Secret Survivors: Uncovering Incest and Its Aftereffects in Women, at xiv (1990) (proposing Post-Incest Syndrome as form of PTSD).
119. See, e.g., Bass & Davis, supra note 55, at 81-83 (offering advice for women who have been abused but cannot recall abuse). In 1987, the definition of PTSD symptoms in the third edition of the American Psychiatric Association's diagnostic manual was amended to include "inability to recall an important aspect of the trauma (psychogenic amnesia)." Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 250-51 (3d ed., rev. 1987). But see McNally, supra note 29, at 2 (arguing traumatic events "rarely slip from awareness,"and "failure to think about something does not entail an inability to remember it"). The recovered memory wars, which I will take up in future work, are beyond the scope of this Article. However, for more information, see generally Frederick Crews, The Memory Wars: Freud's Legacy in Dispute (1995) (explaining connections between Freud and recovered memory movement);
120. Elizabeth Loftus & Katherine Ketcham, The Myth of Repressed Memory: False Memories and Allegations of Sexual Abuse (1994) (expressing skepticism regarding repressed memories).
121. Herman, Trauma and Recovery, supra note 29, at 14;
122. see Catharine A. MacKinnon, "More Than Simply a Magazine": Playboy's Money, in Feminism Unmodified: Discourses on Life and Law 134, 144 (1987) (criticizing Freud's "disbelief of women's accounts of victimization through sexual abuse as children. When women reported what had happened to them, Freud couldn't finally believe it was real, so he invented fantasy to explain the inexplicable and put it in the unconscious");
123. see also Catharine A. MacKinnon, Women's Lives, Men's Laws 253 (2005) ("Both psychoanalytic and the pornographic 'fantasy' worlds are what men imagine women imagine and desire .... The fantasy theory is the fantasy.");
124. Judith Lewis Herman, My Life and Work, in Mapping Trauma and Its Wake: Autobiographic Essays by Pioneer Trauma Scholars, supra note 47, at 77, 80 ("I began my psychiatric residency in 1970, at the same time that I was participating in my consciousness-raising group.").
125. See generally Herman, Trauma and Recovery, supra note 29.
126. See id. at ix ("This book owes its existence to the women's liberation movement.").
127. Id. at 32.
128. Similarly, we see increasing public attention to PTSD among soldiers of today's unpopular wars in Iraq and Afghanistan. See, e.g., Damien Cave, A Combat Role, and Anguish, Too, N.Y. Times, Nov. 1, 2009, at Al ("Never before has this country seen so many women paralyzed by the psychological scars of combat.");
129. James Dao, Mental Health Problems Plague Returning Veterans, N.Y. Times, July 17, 2009, at A10 (noting "growing public awareness of PTSD");
130. James Dao, Veterans Affairs, Already Struggling with Backlog, Faces Surge of Disability Claims, N.Y. Times, July 13, 2009, at A10 (stating PTSD "has emerged as one of the most prevalent disability claims" among veterans).
131. E.g., Roy R. Grinker & John P. Spiegel, Men Under Stress (1945);
132. Roy R. Grinker & John P. Spiegel, War Neuroses (1945);
133. Edgar Jones & Simon Wessely, Shell Shock to PTSD: Military Psychiatry from 1900 to the Gulf War (2005);
134. Ben Shephard, A War of Nerves: Soldiers and Psychiatrists in the Twentieth Century (2000). The experiences of victims of war and genocide have also produced interest in trauma, see, e.g., Martha Minow, Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence (1998), including those specifically of Holocaust survivors, see, e.g., Dori Laub, Bearing Witness or the Vicissitudes of Listening, in Shoshana Felman & Dori Laub, Testimony: Crises of Witnessing in Literature, Psychoanalysis, and History 57 (1992).
135. See generally Robert Jay Lifton, Home from the War: Vietnam Veterans: Neither Victims nor Executioners (1973).
136. Shephard, supra note 66, at 367;
137. Young, supra note 17, at 107; John P. Wilson, The Historical Evolution of PTSD Diagnostic Criteria: From Freud to DSM IV, 7 J. Traumatic Stress 681, 691-93 (1994). See generally Scott, supra note 17.
138. Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 228, 236 (3d ed. 1980) [hereinafter DSM-III].
139. Herman, Trauma and Recovery, supra note 29, at 32.
140. Appignanesi, supra note 44, at 425-26.
141. Id. at 427;
142. Laura S. Brown, Not Outside the Range: One Feminist Perspective on Psychic Trauma, in Trauma: Explorations in Memory 100, 100-01 (Cathy Caruth ed., 1995).
143. For the seminal texts on BWS, see generally Lenore E. Walker, The Battered Woman (1979) [hereinafter Walker, The Battered Woman];
144. Lenore E. Walker, The Battered Woman Syndrome (1984) [hereinafter Walker, BWS];
145. Lenore E. Walker, Terrifying Love (1989) [hereinafter Walker, Terrifying Love].
146. See Lenore E. Walker, Post-Traumatic Stress Disorder in Women: Diagnosis and Treatment of Battered Woman Syndrome, 28 Psychotherapy 21 (1991) [hereinafter Walker, PTSD in Women] ("[PTSD] comes closest to describing battered woman syndrome . . . .").
147. See J. Bruce Overmier & Martin E.P. Seligman, Effects of Inescapable Shock upon Subsequent Escape and Avoidance Responding, 63 J. Comp. & Physiological Psychol. 28 (1967) (discussing caged dog experiments and relating results to learned helplessness theory);
148. Martin E.P. Seligman & Steven F. Maier, Failure to Escape Traumatic Shock, 74 J. Experimental Psychol. 1 (1967) (same).
149. Martin E.P. Seligman, Helplessness: On Depression, Development, and Death 22 (1975);
150. see Walker, Terrifying Love, supra note 73, at 49-53 (discussing learned helplessness generally);
151. Lyn Y. Abramson, Martin E.P. Seligman & John D. Teasdale, Learned Helplessness in Humans: Critique and Reformulation, 87 J. Abnormal Psychol. 49 (1978) (criticizing and reformulating learned helplessness theory as applied to humans).
152. See, e.g., L. Stephen O'Brien, Traumatic Events and Mental Health 103-04 (1998) (stating best model for negative symptoms of PTSD is inescapable shock or learned helplessness);
153. Elizabeth A. Waites, Trauma and Survival: Post-Traumatic and Dissociative Disorders in Women 22-25 (1993) ("[T]rauma . . . overtaxes the mechanisms for responding to new or dangerous situations. As a result, these mechanisms may be pathologically altered in ways that subsequently interfere with normal, everyday coping.");
154. Gordon Turnbull et al., The Development of a Group Treatment Model for Post-Traumatic Stress Disorder, in Simple and Complex Post-Traumatic Stress Disorder 137, 142 (Mary Beth Williams & John F. Sommer, Jr. eds., 2002) (discussing trauma and linking learned helplessness with symptoms of PTSD).
155. Lenore E.A. Walker, Battered Women Syndrome and Self-Defense, 6 Notre Dame J.L. Ethics & Pub. Pol'y 321, 330 (1992) [hereinafter Walker, BWS and Self-Defense];
156. see also Walker, PTSD in Women, supra note 74, at 24-25 (applying learned helplessness to battered woman syndrome).
157. Walker, BWS, supra note 73, at 33, 86-94.
158. Walker, Terrifying Love, supra note 73, at 267.
159. See David L. Faigman & Amy J. Wright, The Battered Woman Syndrome in the Age of Science, 39 Ariz. L. Rev. 67, 68 (1997) (arguing use of BWS in court has been due to law's reception of Walker's The Battered Woman, supra note 73). A large literature has grown up around the use of BWS in criminal law. See generally Cynthia K. Gillespie, Justifiable Homicide: Battered Women, Self-Defense, and the Law (1989);
160. Elizabeth M. Schneider, Battered Women and Feminist Lawmaking (2000);
161. Joshua Dressier, Battered Women and Sleeping Abusers: Some Reflections, 3 Ohio St. J. Crim. L. 457 (2006);
162. Holly Maguigan, Battered Women and Self-Defense: Myths and Misconceptions in Current Reform Proposals, 140 U. Pa. L. Rev. 379 (1991);
163. Mahoney, supra note 24;
164. Regina A. Schuller & Neil Vidmar, Battered Woman Syndrome Evidence in the Courtroom: A Review of the Literature, 16 Law & Hum. Behav. 273 (1992).
165. Maguigan, supra note 81, at 423-24.
166. Audrey Rogers, Prosecutorial Use of Expert Testimony in Domestic Violence Cases: From Recantation to Refusal to Testify, 8 Colum. J. Gender & L. 67, 78-81 (1998);
167. Paula Finley Mangum, Note, Reconceptualizing Battered Woman Syndrome Evidence: Prosecution Use of Expert Testimony on Battering, 19 B.C. Third World L.J. 593, 613-14 (1999);
168. Joan M. Schroeder, Note, Using Battered Woman Syndrome Evidence in the Prosecution of a Batterer, 76 Iowa L. Rev. 553, 565 (1991).
169. Rogers, supra note 83, at 82-83;
170. Mangum, supra note 83, at 613-14; Schroeder, supra note 83, at 565.
171. See Maguigan, supra note 81, at 429-31 (describing different states' approaches).
172. Boston Women's Health Book Collective, Our Bodies, Ourselves: A Book by and for Women 92 (1971).
173. Boston Women's Health Book Collective, The New Our Bodies, Ourselves: A Book by and for Women 135 (1992) (emphasis added).
174. DSM-IV-TR, supra note 18, at 463.
175. Id. at 463-64.
176. Id.
177. Id. at 464.
178. Id. at 466.
179. Young, supra note 17, at 135-36.
180. See, e.g., Jeffrey C. Alexander et al., Cultural Trauma and Collective Identity (2004) (applying trauma to collective identity);
181. Cathy Caruth, Unclaimed Experience: Trauma, Narrative, and History (1996) (literary theory);
182. Ann Cvetkovich, An Archive of Feelings: Trauma, Sexuality, and Lesbian Public Cultures (2003) (homosexuality);
183. Ron Eyerman, Cultural Trauma: Slavery and the Formation of African American Identity (2002) (race);
184. Rirby Farrell, Post-Traumatic Culture: Injury and Interpretation in the Nineties (1998) (literature, culture, and film);
185. Didier Fassin & Richard Rechtman, The Empire of Trauma: An Inquiry into the Condition of Victimhood (Rachel Gomme trans., Princeton University Press 2009) (2007) (social anthropology);
186. Shoshana Felman, The Juridical Unconscious: Trials and Traumas in the Twentieth Century (2002) (applying trauma theories to trials);
187. Felman & Laub, supra note 66 (literature);
188. Geoffrey H. Hartman, The Longest Shadow: In the Aftermath of the Holocaust (1996) (Holocaust);
189. E. Ann Kaplan, Trauma Culture: The Politics of Terror and Loss in Media and Literature (2005) (media and literature);
190. Dominick LaCapra, Representing the Holocaust: History, Theory, Trauma (1994) (Holocaust); Dominick LaCapra, Writing History, Writing Trauma (2001) (describing literary-critical attempts to deal with trauma);
191. Michael Rothberg, Traumatic Realism: The Demands of Holocaust Representation (2000) (Holocaust);
192. Trauma and Memory: Reading, Healing, and Making Law (Austin Sarat et al. eds., 2008) (memory and law).
193. Jessica Savage, Criminal Law Chapter: Battered Woman Syndrome, 7 Geo. J. Gender & L. 761, 769 (2006) (" [BWS] is now admissible in every jurisdiction when used by the defense, several states have codified its use with statutes, and more recently many states allow its use by the prosecution in domestic violence cases.").
194. See, e.g., Hogan, supra note 48, at 530 (discussing RTS and ways courts analyze rape trauma evidence).
195. See generally Richard Ofshe & Ethan Waiters, Making Monsters: False Memories, Psychotherapy, and Sexual Hysteria (1994) (examining psychotherapeutic methods of treating patients for depression through creation of traumatic "memories" patients are said to have repressed).
196. See generally Brett C. Trowbridge, The Admissibility of Expert Testimony in Washington on Post Traumatic Stress Syndrome and Related Trauma Syndromes: Avoiding the Battle of the Experts by Restoring the Use of Objective Psychological Testimony in the Courtroom, 27 Seattle U. L. Rev. 453, 474-75 (2003) (describing child sexual abuse accommodation syndrome (CSAAS) and noting that it "was not formulated as a way to prove that abuse happened because it assumes that abuse has occurred");
197. Mary Ellen Reilly, Note, Expert Testimony on Sexually Abused Child Syndrome in a Child Protective Proceeding: More Hurtful than Helpful, 3 Cardozo Pub. L. Pol'y & Ethics J. 419 (2005) (describing CSAAS and arguing against admission of such testimony);
198. Margaret H. Shiu, Note, Unwarranted Skepticism: The Federal Courts' Treatment of Child Sexual Abuse Accommodation Syndrome, 18 S. Cal. Interdisc. L.J. 651 (2009) (analyzing federal courts' "growing skepticism" of CSAAS testimony and arguing for its "scientific relevance and legal validity").
199. See Roland C. Summit, The Child Sexual Abuse Accommodation Syndrome, 7 Child Abuse & Neglect 177 (1983) (classifying syndrome and describing symptoms).
200. McNally, supra note 29, at 13.
201. Mary R. Williams, Suits by Adults for Childhood Sexual Abuse: Legal Origins of the "Repressed Memory" Controversy, 24 J. Psychiatry & L. 207, 207-09 (1996) (detailing history of adult childhood sexual abuse actions based on recovered memories).
202. For discussions of strategies used by courts and states to avoid the strict application of statutes of limitations to cases of child sexual abuse, see Elizabeth A. Wilson, Child Sexual Abuse, the Delayed Discovery Rule, and the Problem of Finding Justice for Adult-Survivors of Child Abuse, 12 UCLA Women's L.J. 145, 166-69 (2003);
203. Rose R. Zoltek-Jick, For Whom Does the Bell Toll? Repressed Memory and Challenges for the Law-Getting Beyond the Statute of Limitations, in Trauma and Memory: Clinical and Legal Controversies 445 (Paul S. Appelbaum et al. eds., 1997);
204. Ann Marie Hagen, Note, Tolling the Statute of Limitations for Adult Survivors of Childhood Sexual Abuse, 76 Iowa L. Rev. 355 (1991).
205. Bass & Davis, supra note 55, at 21.
206. Claudia Avina & William O'Donohue, Sexual Harassment and PTSD: Is Sexual Harassment Diagnosable Trauma?, 15 J. Traumatic Stress 69, 72 (2002).
207. See Excerpts of Arguments Filed by Clinton Seeking Dismissal of Suit, N.Y. Times, Mar. 21, 1998, at A8. Allegedly Clinton, who was then Governor of Arkansas, had state troopers escort Jones to a hotel room where he dropped his trousers and asked her to "kiss it." Excerpts from Deposition by Jones in Harassment Suit Against Clinton, N.Y. Times, Mar. 14, 1998, at A12.
208. Lisa H. Gold & Robert I. Simon, Posttraumatic Stress Disorder in Employment Cases, in Mental and Emotional Injuries in Employment Litigation 502, 502-03 (James J. McDonald, Jr. & Francine B. Kulick eds., 2001) (noting PTSD is so common that "it has been referred to as both 'a cottage industry' and 'a forensic minefield'" (citations omitted));
209. James J. McDonald, Jr., Posttraumatic Stress Disorder in Employment Cases, in Mental and Emotional Injuries in Employment Litigation-2008 Cumulative Supplement 127, 130 (James J. McDonald, Jr. ed., 2008) ("PTSD remains a very popular diagnosis in employment lawsuits today.").
210. Cf. Stone, PTSD and the Law, supra note 19, at 35 ("[PTSD] seems at first to provide a world of Manichaean moral certainty where evil people traumatize innocent victims, but of course it is not that simple . . . .").
211. Catharine A. MacKinnon, Are Women Human? And Other International Dialogues 228 (2006) (citation omitted).
212. Siegel, Right's Reasons, supra note 8, at 1662-63.
213. Id. at 1663-64 & n.78;
214. see also Lee, supra note 7, at 55-58 (discussing "Koop inquiry" in detail).
215. Lee, supra note 7, at 56-58 ("The Koop inquiry . . . did not lead to legislative changes in abortion law on the basis that abortion damages women's health.").
216. I discuss empirical studies on abortion trauma in Part IV. C, infra.
217. See, e.g., Gonzales v. Carhart, 550 U.S. 124, 159 (2007) (recognizing abortion trauma as of "legitimate concern" to State in context of partial-birth abortion).
218. Roe v. Wade, 410 U.S. 113, 141-43 (1973).
219. Id. at 142-43. From the 1950s to the 1970s, "physicians' concept of 'health' was expanding to include the pregnant woman's overall mental state. Thus, in cases of rape and incest doctors began to include psychological harm in their calculations of the costs associated with childbirth." Laurence H. Tribe, Abortion: The Clash of Absolutes 36 (new ed. 1992).
220. In 1962, the Model Penal Code included an abortion ban with an exception when, inter alia, "continuance of the pregnancy would gravely impair the physical or mental health of the mother," or pregnancy resulted from rape or incest. Model Penal Code § 230.3(2) (1962). By 1972, thirteen states had adopted the MPC exceptions to their criminal abortion bans. Rachel Benson Gold, Lessons from Before Roe: Will Past Be Prologue?, Guttmacher Rep. on Pub. Pol'y, Mar. 2003, at 8, 9, available at http://www.guttmacher.org/pubs/tgr/06/l/ gr060108.pdf (on file with the Columbia Law Review).
221. United States v. Vuitch, 402 U.S. 62, 72 (1971).
222. Roe, 410 U.S. at 149.
223. Id.; see also id. at 162 ("We repeat . . . that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman . . . .").
224. Id. at 153.
225. Id. (emphases added).
226. Cf. Comm. on Psychiatry and the Law, Group for the Advancement of Psychiatry, The Right to Abortion: A Psychiatric View 49 (Charles Scribner's Sons 1970) (1969) ("[T]here are few things more disruptive to a woman's spirit than being forced into motherhood without love or need."); id. at 11 (stating that "no convincing evidence was found to support . . . and considerable evidence to dispel" fear of negative psychological aftereffects of abortion).
227. Plaintiff's First Amended Complaint at III, Doe v. Wade, 314 F. Supp. 1217 (N.D. Tex. 1970) (No. CA-3-3691-C);
228. see also Lucinda M. Finley, The Story of Roe v. Wade: From a Garage Sale for Women's Lib, to the Supreme Court, to Political Turmoil, in Constitutional Law Stories 359, 380-81 (Michael C. Dorf ed., 2004) (describing Marsha Ring's "neurochemical disorder").
229. See David J. Garrow, Liberty and Sexuality 401 (updated ed. 1998).
230. Roe's paternalistic language of the male physician's supervision of the woman's decision has been widely noted. See, e.g., Greenhouse, Shifting Discourse, supra note 8, at 42 ("To modern ears . . . Roe's paternalistic assumption that doctors (always male, evidently) know what is best for their female patients sounds archaic. . . . [T]he decision is much more a doctor's bill of rights than it is a feminist manifesto.").
231. Roe's attention to women's mental health has been praised. See, e.g., Barbara Jean Bailey, Note, Congress Ignores the Parameters of the Health Exception: Judicial Responses to Congressional Evidence and Partial-Birth Abortion in the Wake of Stenberg v. Carhart, 27 J. Legal Med. 71, 85 (2006) (favoring Roe's broad conception of maternal health to include mental health); Gail Glidewell, Note, "Partial Birth" Abortion and the Health Exception: Protecting Maternal Health or Risking Abortion on Demand?, 28 Fordham Urb. L.J. 1089, 1144 (2001) (same);
232. Tamara F. Kushnir, Note, It's My Body, It's My Choice: The Partial-Birth Abortion Ban Act of 2003, 35 Loy. U. Chi. L.J. 1117, 1172-75 (2004) (same).
233. See, e.g., Hill v. Colorado, 530 U.S. 703, 709, 715 (2000) (reasoning that state's legitimate interest in protecting health and safety "may justify a special focus on . . . the avoidance of potential trauma to patients associated with confrontational protests" at abortion clinics); Hodgson v. Minnesota, 497 U.S. 417, 479 (1990) (Marshall, J., concurring in part, concurring in the judgment in part, and dissenting in part) (arguing that forcing young pregnant woman to notify parent or judge before obtaining abortion "is more likely to result in trauma and pain than in an informed and voluntary decision");
234. Webster v. Reprod. Health Servs., 492 U.S. 490, 557 (1989) (Blackmun, J., concurring in part and dissenting in part) (criticizing Court for allowing "government to force upon women . . . specific and direct medical and psychological harms that may accompany carrying a fetus to term");
235. H.L. v. Matheson, 450 U.S. 398, 411 (1981) ("The medical, emotional, and psychological consequences of an abortion are serious and can be lasting . . . .");
236. Harris v. McRae, 448 U.S. 297, 340 (1980) (Marshall, J., dissenting) (criticizing law denying federal funding "in cases in which severe mental disturbances will be created by unwanted pregnancies. The result of such psychological disturbances may be suicide, attempts at self-abortion, or child abuse.");
237. Doe v. Bolton, 410 U.S. 179, 190 (1973) ("[I]t would be physically and emotionally damaging to Doe to bring a child into her poor, 'fatherless' family . . . ." (footnote omitted)).
238. Gonzales v. Carhart, 550 U.S. 124, 183 n.7 (2007) (Ginsburg, J., dissenting) (internal quotation marks omitted) (quoting Am. Psychol. Ass'n, APA Briefing Paper on the Impact of Abortion (2005), available at http://web.archive.org/web/20050209224546 /http://www.apa.org/ppo/issues/ womenabortŕacts.html (on file with the Columbia Law Review));
239. see also id. (citing Anne C. Gilchrist et al., Termination of Pregnancy and Psychiatric Morbidity, 167 Brit. J. Psychiatry 243, 247-48 (1995) (finding psychiatric disorder rate was no higher among women who had abortions than among those who carried pregnancy to term); Nada L. Stotland, The Myth of the Abortion Trauma Syndrome, 268 J. Am. Med. Ass'n 2078, 2079 (1992) ("Scientific studies indicate that legal abortion results in fewer deleterious sequelae for women compared with other possible outcomes of unwanted pregnancy.")).
240. Carhart, 550 U.S. at 183 n.7 (Ginsburg, J., dissenting) (internal quotation marks omitted) (quoting Susan A. Cohen, Abortion and Mental Health: Myths and Realities, Guttmacher Pol'y Rev., Summer 2006, at 8, 8).
241. Id. at 183, 185.
242. 208 U.S. 412, 423 (1908) (upholding law requiring employers not to employ women in mechanical establishment, factory, or laundry more than ten hours a day); see id. at 421-22 ("[W]oman has always been dependent upon man. . . . [H]er physical structure and a proper discharge of her maternal functions-having in view not merely her own health, but the well-being of the race-justify legislation to protect her from the greed as well as the passion of man.").
243. 83 U.S. (16 Wall.) 130, 139 (1873) (upholding state's refusal to grant woman license to practice law). Justice Bradley's concurring opinion in Bradwell stated: Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. Id. at 141 (Bradley, J., concurring).
244. 518 U.S. 515, 519 (1996) (Ginsburg, J.) (holding unconstitutional Virginia Military Institute's male-only admission policy); see id. at 533 (rejecting "overbroad generalizations" about women's "talents, capacities, or preferences").
245. 430 U.S. 199, 202 (1977) (holding unconstitutional laws providing that earnings of deceased husband were payable to his widow but earnings of deceased wife were payable to her widower only if he had been receiving one-half support from her); see id. at 207 (rejecting "archaic and overbroad generalizations" like "assumptions as to [women's] dependency" (internal quotation marks omitted) (quoting Weinberger v. Wiesenfeld, 420 U.S. 636, 645 (1975);
246. Schlesinger v. Ballard, 419 U.S. 498, 508 (1975))).
247. Carhart, 550 U.S. at 185 (Ginsburg, J., dissenting).
248. See Jeffrey Rosen, The Book of Ruth: Judge Ginsburg's Feminist Challenge, New Republic, Aug. 2, 1993, at 19, 20 (observing that some feminists in 1980s, including Catharine MacKinnon, "sought to resurrect many of the special protections for women that Ginsburg had opposed" as continuations of separate-spheres gender ideology).
249. See Carhart, 550 U.S. at 185 (Ginsburg, J., dissenting). Once celebrated for breaking with the Supreme Court's Lochner-era. invalidation of progressive social and economic legislation, Mutter has become a case routinely disparaged for protecting women based on stereotypes. See, e.g., Nev. Dept. of Human Res. v. Hibbs, 538 U.S. 721, 729 (2003) (noting Mutter's reasoning about women no longer prevails);
250. UAW v. Johnson Controls, Inc., 499 U.S. 187, 211 (1991) (same);
251. Cal. Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 300 (1987) (White, J., dissenting) (same);
252. Geduldig v. Aiello, 417 U.S. 484, 503 (1974) (Brennan, J., dissenting) (same);
253. see alsojudith A. Baer, The Chains of Protection: The Judicial Response to Women's Labor Legislation 55-67 (1978) (describing decisionmaking process in Mutter); Mary E. Becker, From Mutter v. Oregon to Fetal Vulnerability Policies, 53 U. Chi. L. Rev. 1219, 1222 (1986) (noting Mutter's sexism);
254. Nancy S. Erickson, Mutter v. Oregon Reconsidered: The Origins of a Sex-Based Doctrine of Liberty of Contract, 30 Lab. Hist. 228, 249 (1989) ("[Mutter's] language evidences a deeply held belief in immutable differences between the sexes that ordain for them totally separate spheres of existence . . . .");
255. Ruth Bader Ginsburg, Mutter v. Oregon: One Hundred Years Later, 45 Willamette L. Rev. 359, 370 (2009) (describing how she became critical of Mutter and women-only protective legislation);
256. Grossman & McClain, supra note 3 (noting "archaic and stereotypical assumptions" motivated law at issue in Mutter); cf. Anne C. Dailey, Lochner for Women, 74 Tex. L. Rev. 1217, 1218-19 (1996) ("Mutter's reliance on the ideology of separate spheres was crucial to sustaining the constitutional philosophy of Lochner."). The maternalist ideology reflected in Mutterwas well accepted among the era's progressive women's groups who actively lobbied for protective legislation and considered Mutter a victory. Baer, supra, at 33;
257. Julie Novkov, Constituting Workers, Protecting Women: Gender, Law, and Labor in the Progressive Era and New Deal Years 96, 112 (2001);
258. Ronnie Steinberg, Wages and Hours: Labor and Reform in Twentieth-Century America 80-81 (1982);
259. Nancy Woloch, Mutter v. Oregon: A Brief History with Documents (1996). But some dissenting feminists of the time were critical. Susan Lehrer, Origins of Protective Labor Legislation for Women, 1905-1925, at 165 (1987);
260. David E. Bernstein, Lochner's Feminist Legacy, 101 Mich. L. Rev. 1960, 1971 & nn.69-71 (2008) (reviewing Novkov, supra).
261. 208 U.S. 412, 423 (1908).
262. See id. at 419 & n.l (detailing Brandeis Brief).
263. Brief for the State of Oregon at 18, Muller, 208 U.S. 412 (No. 107), 1908 WL 27605, reprinted in Louis D. Brandeis, Women in Industry: Decision of the United States Supreme Court in Curt Muller vs. State of Oregon 1 (1908) [hereinafter Brandeis Brief].
264. Id. at 19 (internal quotation marks omitted) (quoting Select Committee on Shops (Early Closing) Bill, Report, 1895, H.C., at 215).
265. Id. at 21 (internal quotation marks omitted) (quoting Havelock Ellis, Man and Woman: Study of Human Secondary Sexual Characters 156 (2d ed. 1896)).
266. Id. at 22-23 (internal quotation marks omitted) (quoting George M. Price, Hygiene of Occupation, in 6 Reference Handbook of the Medical Sciences 316 (Albert H. Buck ed., rev. ed. 1903)).
267. Gonzales v. Carhart, 550 U.S. 124, 185 (2007) (Ginsburg, J., dissenting)
268. See Melanie K. Morris, Ruth Bader Ginsburg and Gender Equality: A Reassessment of Her Contribution, 9 Cardozo Women's L.J. 1, 4 (2002) ("As counsel for the American Civil Liberties Union ('ACLU') Justice Ginsburg was the principal author of the brief for the appellant, appellee, or petitioner in nine gender equality cases brought before the Supreme Court."). The gender equality cases Ginsburg successfully argued before the Supreme Court include Duren v. Missouri, 439 U.S. 357 (1979) (holding unconstitutional laws exempting women from jury service upon request);
269. Califano v. Goldfarb, 430 U.S. 199 (1977) (holding unconstitutional laws providing that earnings of deceased husband were payable to his widow, but earnings of deceased wife were payable to her widower only if he had been receiving one-half support from her);
270. Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) (holding unconstitutional Social Security scheme providing benefits that accrue to widow for deceased spouse, but not to widower);
271. Frontiero v. Richardson, 411 U.S. 677 (1973) (holding unconstitutional a law providing that wives of uniformed services members are dependants for benefits purposes, but that female members must prove their husbands are actually dependent).
272. Emily Bazelon, The Place of Women on the Court, N.Y. Times, July 12, 2009, § 6 (Magazine), at 22 (interviewing Justice Ginsburg).
273. Roe v. Wade, 410 U.S. 113, 153 (1973).
274. Id.
275. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 856 (1992) (plurality opinion) ("The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.").
276. See id. at 846 (purporting to "reaffirm[ ]" Roe's "essential holding," including "right of the woman to choose to have an abortion before viability").
277. See id. at 876.
278. See id. at 879-90.
279. Id. at 881 (quoting 18 Pa. Cons. Stat. § 3205(a) (1) (ii) (1990)).
280. Id. at 882.
281. Id. (emphasis added).
282. Cf. Thomas R. Eller, Informed Consent Civil Actions for Post-Abortion Psychological Trauma, 71 Notre Dame L. Rev. 639 (1996) (exploring when women may sue abortion providers for failing to inform them of risk of psychological trauma from abortion).
283. See Grossman & McClain, supra note 3 (noting Carhart's "reference to women's making a psychologically harmful decision, when they choose to have an abortion, has its roots in" Casey);
284. cf. Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724, 734 (8th Cir. 2008) (en banc) (quoting Casey, 505 U.S. at 882, and citing Carhart's discussion of abortion regret at 550 U.S. 124, 159-60 (2007)) (holding disclosure of information that might convince patient not to choose abortion and does not pertain to procedure's medical risks, furthers legitimate purpose of reducing risk of "devastating psychological consequences").
285. Carhart, 550 U.S. at 159-60.
286. See Casey, 505 U.S. at 887-98. Casey also struck down the related requirement that a facility performing an abortion report to the state a married woman's reasons for not notifying her husband. Id. at 901.
287. Id. at 889 (internal quotation marks omitted).
288. Id. (internal quotation marks omitted).
289. Id. at 888 (internal quotation marks omitted).
290. Id. at 890 (internal quotation marks omitted).
291. Id. at 891 (citing Walker, BWS, supra note 73, at 27-28).
292. Id. at 892. Compare id., with Gonzales v. Carhart, 550 U.S. 124, 159 (2007) (conceding there was no reliable evidence for psychological harm of abortion).
293. Casey, 505 U.S. at 892. Compare id., with Carhart, 550 U.S. at 159 (abortion regret is "unexceptionable"and "self-evident"), and Roe v. Wade, 410 U.S. 113, 153 (1973) (psychological detriment to women is "apparent").
294. Casey, 505 U.S. at 893 (emphasis added).
295. Id.
296. Id. at 882.
297. Id. at 893.
298. Defense Opening Argument, Lorena Bobbitt Trial: Arraignment Hearing, pt. 5, (CNN Jan. 10, 1994), available in LEXIS (transcript of broadcast, no. 525-4) (on file with the Columbia Law Review) [hereinafter Defense Opening Argument].
299. See, e.g., Frankenpenis (Leisure Time Entertainment 1996); John Wayne Bobbitt Uncut (Leisure Time Entertainment 1994).
300. By contrast, John Bobbitt said that after a long day of work and visits to a number of bars, he got in bed and Lorena approached him for sex, but he had difficulty performing because he was so exhausted. Prosecutor's Opening Argument, Lorena Bobbitt Trial: Arraignment Hearing, pt. 5, (CNN Jan. 10, 1994), available in LEXIS (transcript of broadcast, no. 525-4) (on file with the Columbia Law Review).
301. Defense Opening Argument, supra note 171. The discussion of Lorena Bobbitt in this Part relies heavily on the transcript of her trial.
302. See, e.g., Robert Davis, Psychiatrist to Testify at Bobbitt Trial Today, USA Today, Jan. 18, 1994, at 8A ("Bobbitt said her husband . . . [m]ade her get an abortion after saying the baby 'would look ugly and that I would never make a good mother.'");
303. Tamara Jones, Maimed Husband Denies Wife's Abortion Charge, Wash. Post, Sept. 26, 1993, at D3 ("Lorena Bobbitt told '20/20' that she was motivated in part by her anguish over an abortion she said her husband had pressured her to get.");
304. Martin Kasindorf, Not-So-Total Recall; Lorena: Whirl of Images from Night of Attack, Newsday, Jan. 15, 1994, at 3 ("John Wayne Bobbitt, who she testified once bullied her into an unwanted abortion . . . , triggered a kaleidoscope of 'pictures there in my head' by raping her . . . .");
305. John Leonard, Phallus Interruptus, The Nation, Nov. 22, 1993, at 617, 617 ("Lorena . . . says that she was sexually abused and raped by her husband, who forced her to have an abortion . . . .");
306. David Margolick, Does Mrs. Bobbitt Count as Another Battered Wife?, N.Y. Times, Jan. 16, 1994, § 4, at 5 ("[S]he was overcome by flashbacks . . . of beatings and rapes, of humiliations and the abortion she said Mr. Bobbitt forced her to endure.");
307. Bill Miller & Marylou Tousignant, "Just So Many Pictures in My Head": Lorena Bobbitt Recalls Rage Before Mutilation but Not Act Itself, Wash. Post, Jan. 15, 1994, at Al ("Lorena Bobbitt told the jury of an event that she said caused perhaps the greatest distress: an abortion in June 1990.");
308. Michael Ross, Bobbitt Testifies About Mutilation of Her Husband, LA. Times, Jan. 15, 1994, at Al ("[H]er husband pressured her into having an abortion, threatening to leave her if she refused . . . .");
309. Anthony Scaduto, Wife with Knife Wanted Him to Just "Disappear, " Newsday, Oct. 5, 1993, at 6 ("[H]er dream of a child was destroyed when he insisted she have an abortion . . . .").
310. The few who have emphasized this aspect of Lorena Bobbitt's trauma are pro-life advocates. See, e.g., The Bobbit [sic] Mystery Unraveled, Post-Abortion Rev., Jan. 2004, at 1, available at http://afterabortion.info/vault/Bobbitt- Report.pdf (on file with the Columbia Law Review).
311. See Defense Opening Argument, supra note 171.
312. See Testimony of John Bobbitt, Lorena Bobbitt Trial: Day 6, pt. 1, (CNN Jan. 19, 1994), available in LEXIS (transcript of broadcast, no. 291-1) (on file with the Columbia Law Review) ("I told her we weren't ready for children. I mean, we were just getting settled and we didn't have any money, we didn't have financial security, we weren't prepared for it.");
313. see also id. (stating Lorena could not have baby because her employer did not want her to take time off). Lorena testified that her husband told her "to do whatever the rest of the girls in trouble do, so he showed me a yellow pages . . . and showed me some clinics that do the abortion." Testimony of Lorena Bobbitt, Lorena Bobbitt Trial: Day 4, pt. 1, (CNN Jan. 14, 1994), available in LEXIS (transcript of broadcast, no. 284-2) (on file with the Columbia Law Review) [hereinafter Testimony of Lorena Bobbitt, Part 1].
314. Testimony of Lorena Bobbitt, Part 1, supra note 178.
315. Id.
316. Id.
317. Id.
318. Defense Opening Argument, supra note 171.
319. John Holliman, John Bobbitt's Attorney Discuss [sic] Case While Jury Decides, (CNN Jan. 21, 1994), available in LEXIS (transcript of broadcast, no. 519-1) (on file with the Columbia Law Review).
320. Testimony of Lorena Bobbitt, Lorena Bobbitt Trial: Day 4, pt. 4, (CNN Jan. 14, 1994), available in LEXIS (transcript of broadcast, no. 284-5) (on file with the Columbia Law Review) [hereinafter Testimony of Lorena Bobbitt, Part 4] (emphasis added). For further testimony about Lorena Bobbitt's state of mind, see Cross Examination of Lorena Bobbitt, Lorena Bobbitt Trial: Day 4, pt. 9, (CNN Jan. 14, 1994), available in LEXIS (transcript of broadcast, no. 284-10) (on file with the Columbia Law Review);
321. Testimony of Dr. Henry Gwaltney, Lorena Bobbitt Trial: Day 4, pt. 12, (CNN Jan. 14, 1994), available in LEXIS (transcript of broadcast, no. 284-12) (on file with the Columbia Law Review); Testimony of Irma Castro, Lorena Bobbitt Trial: Day 4, pt. 14, (CNN Jan. 14, 1994), available in LEXIS (transcript of broadcast, no. 284-14) (on file with the Columbia Law Review).
322. Walker, BWS and Self-Defense, supra note 78, at 321. A popular representation of battered women was the television docudrama, The Burning Bed (1984), based on the story of Francine Hughes, who set her abusive husband on fire and was found not guilty by reason of insanity.
323. Schneider, supra note 81, at 199-200.
324. Testimony of Lorena Bobbitt, Part 4, supra note 185.
325. See Barbara Ehrenreich, Feminism Confronts Bobbittry, Time, Jan. 24, 1994, at 74 (describing "legions of domestic-abuse specialists who see Lorena Bobbitt as one more martyr in women's long, weepy history of rape and abuse");
326. Rim Masters, Sex, Lies, and an 8-Inch Carving Knife, Vanity Fair, Nov. 1993, at 168 ("Lorena Leonor Bobbitt became a national folk heroine when, after her husband allegedly raped her, she cut off his penis with an eight-inch carving knife and tossed it out her car window as she drove away.");
327. Katie Roiphe, Op-Ed, All the Rage, N.Y. Times, Nov. 29, 1993, at A17 ("She has ardent supporters, people who consider her a heroine and a victim, people who will feel outraged and betrayed if she is convicted of malicious wounding . . . .").
328. See Alan M. Dershowitz, The Abuse Excuse: And Other Cop-Outs, Sob Stories, and Evasions of Responsibility 45-47 (1994) (questioning validity of Lorena Bobbitt's temporary insanity defense);
329. Peter Arenella, Demystifying the Abuse Excuse: Is There One?, 19 Harv. J.L. & Pub. Pol'y 703, 705 (1996) (arguing abuse excuse was not as prevalent as media proclaimed, and offering Lorena Bobbitt's trial as one clear high-profile example of abuse excuse);
330. Richard J. Bonnie, Excusing and Punishing in Criminal Adjudication: A Reality Check, 5 Cornell J.L. & Pub. Pol'y 1, 5 (1995) (same).
331. Defense Opening Argument, supra note 171.
332. Id.
333. Her defense attorney stated: I suggest to you ladies-and you know, trying to get ready for this case I had to talk to some ladies, so I'm going to rely on you ladies back there in that jury room-I suggest that if you've got the healthiest mind in the world, that you're in a state of hysteria and disorientation from everything I've read and heard, when you're raped. . . . When you're in this unhealthy state of mind, can there be any question she could not control her impulsive act? Defense Closing Argument, Lorena Bobbitt Trial: Day 7, pt. 2, (CNN Jan. 20, 1994), available in LEXIS (transcript of broadcast, no. 294-2) (on file with the Columbia Law Review) [hereinafter Defense Closing Argument] (emphasis added).
334. The classic association of hysteria with the uterus lent itself to the defense narrative's superimposition of abortion trauma on rape trauma. For my discussion of hysteria, see supra Part I. Indeed, Lorena's account focused on anal rape-a clearly non-procreative sexual violation. Severing the penis that violated her symbolized the violation of her womb-the tearing of the fetus from the uterus. Freud claimed that girls experience a "castration complex" leading to "penis envy,"and that the girl's wish for a penis becomes the woman's wish for a baby. See Sigmund Freud, Lecture XXXIII: Feminity, in 22 Standard Edition, supra note 28, at 112, 128 ("The feminine situation is only established ... if the wish for a penis is replaced by one for a baby, if, that is, a baby takes the place of a penis in accordance with an ancient symbolic equivalence.");
335. cf. Catharine A. MacKinnon, Reflections on Sex Equality Under Law, 100 Yale L.J. 1281, 1310 n.131 (1991) (interpreting Freud to suggest that "men might identify with the fetus as the embodiment of the penis, making abortion a symbolic castration"). Lorena Bobbitt's case suggested the idea of a baby as a penis substitute: The penis represented the fetus. The cutting represented the abortion.
336. Defense Closing Argument, supra note 193. The defense did not present expert testimony specifically on post-abortion syndrome. David Reardon, an antiabortion activist and a major expounder of abortion trauma, says he arranged for Lorena to be examined by an abortion trauma expert and to help with the defense. The Elliot Institute's Role in Uncovering the Mystery, Post-Abortion Rev., Jan. 2004, at 8, available at http://afterabortion.info/vault/Bobbitt- Report.pdf (on file with the Columbia Law Review) [hereinafter Elliot Institute's Role].
337. However, the defense team decided not to have testimony on post-abortion syndrome because of the "risk that emphasizing the trauma of the abortion might provoke a backlash from pro-abortion jurors who might reject this entire defense as simply 'anti-choice' propaganda." Why the Truth Was Buried, Post-Abortion Rev., Jan. 2004, at 14, available at http://afterabortion.info/ vault/Bobbitt-Report.pdf (on file with the Columbia Law Review).
338. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 888-95 (1992) (plurality opinion) (declaring husband notification provision an undue burden).
339. Id. at 893-94. The plurality responded to the argument that the effects of the husband notification provisions "are felt by only one percent of the women who obtain abortions" with the argument that the "proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant." Id. at 894.
340. See id. at 895 (reasoning that prevalence of domestic abuse meant "large fraction" of those who do not wish to notify husbands would experience "a substantial obstacle to a woman's choice to undergo an abortion").
341. See id. at 894 (focusing analysis on women upon whom statute operates).
342. Id. at 895 (finding notification requirement "an undue burden, and therefore invalid"); cf. Jeannie Suk, At Home in the Law: How the Domestic Violence Revolution Is Transforming Privacy 125-28 (2009) (noting that in Casey, by presenting battered woman as "the exemplary woman, the Court foregrounded understandings of marriage as a relationship in which women fear abuse by their husbands").
343. MacKinnon, Feminism, Marxism, Method, and the State, supra note 23, at 532.
344. Catharine A. MacKinnon, Introduction, in Feminism Unmodified, supra note 61, at 1, 7 ("For the female, subordination is sexualized, in the way that dominance is for the male, as pleasure as well as gender identity, as femininity.").
345. See, e.g., Katharine K. Baker, Gender, Genes, and Choice: A Comparative Look at Feminism, Evolution, and Economics, 80 N.C. L. Rev. 465, 485-94, 515-20 (2002) (arguing for "acknowledgment of the coercive conditions that often rob [women's] choices of much meaning");
346. Cheryl Hanna, No Right to Choose: Mandated Victim Participation in Domestic Violence Prosecutions, 109 Harv. L. Rev. 1849, 1850 (1996) ("[P]rosecutors must take the choice of prosecution away from the victim if they are serious about sending a clear message that domestic violence is criminally unacceptable.");
347. Joan Williams, Gender Wars: Selfless Women in the Republic of Choice, 66 N.Y.U. L. Rev. 1559, 1608-15 (1991) (questioning whether mothers' "choices" to stay home with their children are really choices);
348. Susan Wendell, Oppression and Victimization; Choice and Responsibility, Hypatia, Autumn 1990, at 15, 17-18 (considering whether "patriarchy make[s] it impossible for women to choose freely").
349. See Casey, 505 U.S. at 893 (describing abuses in marriages that impede woman's choice to have abortion).
350. See Gonzales v. Carhart, 550 U.S. 124, 159 (2007).
351. Id. at 170 (Ginsburg, J., dissenting).
352. See, e.g., Joan Biskupic, Court Takes Harder Stance on Abortion, USA Today, Apr. 19, 2007, at 2A (calling decision "rhetorically very disturbing") (internal quotation marks omitted) (quoting Suzanna Sherry);
353. Joffe, supra note 3 (calling decision "disturbing for its . . . allegation of lasting mental health consequences of an abortion");
354. Michael Foust, In Their Own Words: Barack Obama's Speech to Planned Parenthood, Baptist Press, Oct. 24, 2008, at http://www.bpnews.net/bpnews.asp? id=29200 (on file with the Columbia Law Review) ('"The only thing more disturbing than the decision was the rationale of the majority.'"(quoting Barack Obama));
355. Grossman & McClain, supra note 3 (noting "Justice Kennedy's disturbing portrayal of abortion as posing psychological peril for women");
356. Phyllis Snyder, Op-Ed, Time to Fight Abortion Decision, JTA, Apr. 19, 2007, at http://jta.org/news/article/2007/04/19/101286/abortionoped (on file with the Columbia Law Review) (referring to "disturbing decision");
357. cf. David Brooks, Op-Ed, Postures in Public, Facts in the Womb, N.Y. Times, Apr. 22, 2007, § 4, at 12 (calling Justice Kennedy's reasoning "bizarre");
358. Mauro, supra note 8 (calling Court's language "wrenching");
359. Grossman & McClain, supra note 3 (calling Carhart "troubling"). Readers even reported finding the decision "horrifying"and "upsetting," being "devastated, "and wanting "to vomit."
360. See Feministing Blog, Comments to: Breaking: Supreme Court Upholds Federal Abortion Ban, Apr. 18, 2007, at http://www.feministing.com/archives/ 006887.html (on file with the Columbia Law Review).
361. S.D. Task Force Report, supra note 26, at 4-5.
362. See, e.g., S.D. Codified Laws § 34-23A-10.1(l)(b), (e) (2007) (requiring doctors to inform women that, inter alia, abortion "will terminate the life of a whole, separate, unique, living human being,"and that psychological risks include depression and suicide);
363. H.B. 1215, 2006 Leg., 81st Sess. (S.D. 2006) (repealed 2006) (prohibiting abortion except to prevent pregnant woman's death); South Dakota Initiated Measure 11-An Act to Protect the Lives of Unborn Children, and the Interests and Health of Pregnant Mothers, by Prohibiting Abortions Except in Cases Where the Mother's Life or Health Is at Risk, and in Cases of Rape and Incest (2008) (banning abortion, with exceptions for rape, incest, and maternal health). For extensive analyses and critiques of the S.D. Task Force Report, see Siegel, Dignity, supra note 8, 1782-88;
364. Siegel, New Politics, supra note 7, at 1007-14, 1030-50;
365. Siegel, Right's Reasons, supra note 8, at 1651-56;
366. see also Janessa L. Bernstein, Note, The Underground Railroad to Reproductive Freedom: Restrictive Abortion Laws and the Resulting Backlash, 73 Brook. L. Rev. 1463, 1492 (2008) (critiquing Task Force Report for omitting "testimony of those who supported keeping abortion a safe and legal option").
367. S.D. Task Force Report, supra note 26, at 47-48.
368. Id. at 7.
369. Norma McCorvey & Andy Meisler, I Am Roe: My Life, Roe v. Wade, and Freedom of Choice 154 (1994).
370. See Norma McCorvey & Gary Thomas, Won by Love 229 (1997) (discussing McCorvey's efforts to "make amends" for "all the things [she did] to make and keep abortion legal");
371. Norma McCorvey, My Horror at Winning the Right to Have an Abortion, Express, Mar. 12, 2004, at 14 (presenting McCorvey's account of why she changed her views on abortion).
372. See McCorvey v. Hill, 385 F.3d 846, 847, 850-51 (5th Cir. 2004) (Jones, J., concurring) (stating McCorvey wanted Roe revisited and presenting evidence of trauma of abortions for women);
373. Brief of Appellant at 16-18, McCorvey, 385 F.3d 846 (No. 03-10711) (describing changes in facts and law since Roe that made McCorvey's motion timely). McCorvey has filed affidavits making similar arguments in other abortion cases.
374. See Affidavit of Norma McCorvey, Cano v. Baker, 435 F.3d 1337 (11th Cir. 2006) (No. 06-162), available at Petition for a Writ of Certiorari, Cano, 435 F.3d 1337 (No. 06-162), app. at 44-55;
375. Affidavit of Norma McCorvey, Marie v. McGreevey, 314 F.3d 136 (3d Cir. 2002) (Nos. 01-1068, 01-1461), available at Appendix on Behalf of Appellants, Marie, 314 F.3d 136 (Nos. 01-1068, 01-1461), at A361-A383.
376. McCorvey was arrested for protesting at Justice Sonia Sotomayor's Senate confirmation hearing. Larry Margasak, Abortion Case Plaintiff Arrested at Senate Hearing, Associated Press, July 13, 2009, available at LEXIS, AP File (on file with the Columbia Law Review).
377. Brief of Appellant at 17, McCorvey, 385 F.3d 846 (No. 03-10711).
378. See discussion of trauma and repression supra Part I.
379. McCorvey, 385 F.3d at 850-51 (Jones, J., concurring).
380. Doe invalidated provisions requiring that abortion patients be state residents and get advance approval from a hospital abortion committee, and that all abortions be performed in hospitals accredited by the Joint Commission on Accreditation of Hospitals. Doe v. Bolton, 410 U.S. 179, 193-201 (1973).
381. Cano, 435 F.3d at 1340;
382. Brief of Appellant at 13-14, 21, 25-27, Cano, 435 F.3d 1337 (No. 05-11641-HH), 2005 WL 4662644.
383. See, e.g., Brief of Sandra Cano et al. as Amici Curiae Supporting Petitioner, Acuna v. Turkish, 129 S. Ct. 44 (2008) (mem.) (No. 07-1328);
384. Cano Brief, supra note 4, at 19;
385. Affidavit of Sandra Cano, Marie v. McGreevy, 314 F.3d 136 (3d Cir. 2002) (Nos. 01-1068, 01-1461), available at Appendix on Behalf of Appellants, Marie, 314 F.3d 136, at A361-A383.
386. Gonzales v. Carhart, 550 U.S. 124, 159 (2007) (citations omitted) (citing Cano Brief, supra note 4, at 1).
387. See generally Cano Brief, supra note 4.
388. Carhart, 550 U.S. at 159. The "bond of love" language recalls Casey's dramatic paean to the "mother who carries a child to full term," who: is subject to anxieties, to physical constraints, to pain that only she must bear. That these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love cannot alone be grounds for the State to insist she make the sacrifice. Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman's role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 852 (1992) (plurality opinion) (emphasis added).
389. Greenhouse, Moral Harm, supra note 15 (internal quotation marks omitted).
390. Pollitt, Regrets Only, supra note 3.
391. Carhart, 550 U.S. at 159 (citation omitted).
392. Id. at 159-60.
393. See, e.g., Bazelon, Telling Doctors, supra note 8, at 2 (noting opinion's "graphic specifics");
394. Grossman & McClain, supra note 3 (noting "lengthy and graphic descriptions of abortion procedures"). But see Michele Morin, Restoring "Respect for the Life Within the Woman," Vt. Cath. Trib., May 4, 2007, at 7 (calling Carhart's language "both disturbing and uplifting" because it "describes in plain words the actual partial-birth abortion procedure (and other, perhaps even more gruesome, methods)").
395. The description stated: The doctor . . . inserts grasping forceps through the woman's cervix and into the uterus to grab the fetus. The doctor grips a fetal part with the forceps and pulls it back through the cervix and vagina, continuing to pull even after meeting resistance from the cervix. The friction causes the fetus to tear apart. For example, a leg might be ripped off the fetus as it is pulled through the cervix and out of the woman. The process of evacuating the fetus piece by piece continues until it has been completely removed. Carhart, 550 U.S. at 135-36.
396. Id. at 138 (quoting Dr. Martin Haskell, H.R. Rep. No. 108-58, at 3 (2003)).
397. Id. at 139 (citations omitted).
398. E.g., Cynthia Gorney, Law and Revulsion: Anthony Kennedy's Disgust with the Details of "Partial-Birth" Abortion Opens the Door for Challenges to Other Abortion Procedures, Am. Prospect, Apr. 27, 2007, available at http://www.prospect.org/cs/articles?article=law-and-revulsion (on file with the Columbia Law Review).
399. Carhart, 550 U.S. at 159 (internal citation omitted).
400. Id. at 159-60.
401. Id. at 160.
402. Id.
403. Id.
404. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992) (plurality opinion).
405. Cf. S.D. Task Force Report, supra note 26, at 4 ("[Many women's] feeling that abortion providers had misled them compounded their sense of loss, adding to their depression, which often followed the mothers' realization that they were implicated in the death of their own child.").
406. Casey, 505 U.S. at 882 ("In attempting to ensure that a woman apprehend the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed.") (emphasis added);
407. see also Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724, 734-35 (8th Cir. 2008) (en banc) (citing both Casey's discussion of "devastating psychological consequences"and Carhart's abortion regret reasoning to support upholding statute that compelled physicians to convey information that might convince patients not to choose abortion);
408. S.D. Task Force Report, supra note 26, at 47 (finding that "psychological consequences can be devastating" when "woman learns, subsequent to the abortion," that doctor "withheld" information that procedure terminates life of human being).
409. For a discussion of two models of trauma, see supra Part I.
410. See Carhart, 550 U.S. at 184 (Ginsburg, J., dissenting);
411. see also Catharine A. MacKinnon, Toward a Feminist Theory of the State 185 (1989) (describing abortion as "an undesired, often painful, traumatic, dangerous, sometimes illegal, and potentially life-threatening procedure").
412. For further discussion of the issue of consent and coercion, see infra Part IV.D.
413. Carhart, 550 U.S. at 184 n.7 (Ginsburg, J., dissenting).
414. See generally Cynthia L. Cooper, Abortion Under Attack, Ms. Magazine, Aug.-Sept. 2001, available at http://www.msmagazine.com/aug01/pas.html (on file with the Columbia Law Review) (attacking post-abortion syndrome as "bogus affliction invented by the religious right");
415. Serena Freewomyn, New Study Debunks "Abortion Trauma Syndrome," Feminists for Choice, Aug. 24, 2009, at http://feministsforchoice.com/new- study-debunks-abortion-trauma-syndrome.htm (on file with the Columbia Law Review) (discussing Gail Erlick Robinson et al., Is There an "Abortion Trauma Syndrome"? Critiquing the Evidence, 17 Harv. Rev. Psychiatry 268 (2009)).
416. See, e.g., Fegan, supra note 7 (arguing post-abortion syndrome is nothing more than political tool of conservative activists);
417. Chris Guthrie, Carhart, Constitutional Rights, and the Psychology of Regret, 81 S. Cal. L. Rev. 877, 902-03 (2008) (noting empirical evidence in support of dissent's position and lack of empirical evidence in support of majority's position);
418. Stotland, supra note 128, at 2079 ("There is no evidence of an abortion trauma syndrome . . . .");
419. Turner, supra note 8, at 42-43 (characterizing antiabortion advocates as "determinedly adhering to the theory in the face of the opposition of scientists");
420. Bazelon, PAS, supra note 7, at 44 (noting studies indicating no evidence for abortion trauma syndrome);
421. Blustain, Mourning After, supra note 8, at 13 ("Post-Abortion Syndrome . . . does not exist.");
422. Joffe, supra note 3, at 59 (characterizing Carhart as deploying "one of the most controversial and discredited tactics of contemporary antiabortion movement-the allegation of lasting mental health consequences of an abortion");
423. Pollitt, Regrets Only, supra note 3, at 9 ("[T]his decision demonstrates . . . how deeply antichoice disinformation has penetrated the worlds of power and influence.");
424. Sarah Prager, Editorial, There Is No Post-Abortion Syndrome, Seattle Post-Intelligencer, July 10, 2007, at B7 (arguing post-abortion syndrome is not identifiable medical condition);
425. Toobin, supra note 3, at 35 ("[N]otwithstanding the claims of the anti-abortion movement, no intellectually respectable support exists for this patronizing notion.");
426. Grossman & McClain, supra note 3 (stating that idea that women regret their abortions "is not only unsupported by 'reliable' evidence, it is contradicted by numerous studies"); cf. Guthrie, supra, at 881 (arguing Court's analysis of regret reflects fundamental misunderstanding of psychology of regret). But cf. Margaret Hellerstein, Book Note, 17 Yale. J.L. & Feminism 527, 532 (2005) (reviewing Women, Madness, and the Law (Wendy Chan et al. eds., 2005)) ("If the syndrome exists, it exists, whether or not the anti-choice movement uses it to attack abortion rights . . . .").
427. The most significant of such studies include Anne Speckhard, Psycho-social Stress Following Abortion (1987);
428. Jesse R. Cougle et al., Depression Associated with Abortion and Childbirth: A Long-Term Analysis of the NLSY Cohort, 9 Med. Sci. Monitor CR157 (2003) [hereinafter Cougle et al., Depression];
429. Jesse R. Cougle et al., Generalized Anxiety Following Unintended Pregnancies Resolved Through Childbirth and Abortion: A Cohort Study of the 1995 National Survey of Family Growth, 19 J. Anxiety Disorders 137 (2005);
430. David M. Fergusson et al., Abortion in Young Women and Subsequent Mental Health, 47 J. Child Psychol. & Psychiatry 16 (2006);
431. Mika Gissler et al., Suicides After Pregnancy in Finland, 1987-94: Register Linkage Study, 313 Brit. Med. J. 1431 (1996);
432. David C. Reardon et al., Deaths Associated with Pregnancy Outcome: A Record Linkage Study of Low Income Women, 95 S. Med. J. 834 (2002) [hereinafter Reardon et al., Deaths];
433. David C. Reardon & Jesse R. Cougle, Depression and Unintended Pregnancy in the National Longitudinal Survey of Youth: A Cohort Study, 324 Brit. Med. J. 151 (2002);
434. David C. Reardon et al., Psychiatric Admissions of Low-Income Women Following Abortion and Childbirth, 168 Can. Med. Ass'n. J. 1253 (2003) [hereinafter Reardon et al., Psychiatric];
435. Vincent Rue et al., Induced Abortion and Traumatic Stress: A Preliminary Comparison of American and Russian Women, 10 Med. Sci. Monitor SR5 (2004).
436. Several recent studies, however, attempt to control for some potentially confounding factors. See, e.g., Cougle et al., Depression, supra note 247, at CR157 (controlling for "age, race, marital status, divorce history, education, income, and external locus of control scores");
437. Fergusson, supra note 247, at 21 (noting "confounding factors");
438. Reardon et al., Deaths, supra note 247, at 836 (controllingfor previous psychiatric history);
439. Reardon et al., Psychiatric, supra note 247, at 1253 (noting methods used to control for age and Medicaid eligibility);
440. Rue et al., supra note 247, at SR10 (controlling for number of abortions, amount of time elapsed since pregnancy, weeks pregnant at time of abortion, and stressors at time of procedure).
441. See Am. Psychological Ass'n Task Force on Mental Health & Abortion, Report of the APA Task Force on Mental Health and Abortion 15-20 (2008), available at http://www.apa.org/pi/women/programs/abortion/mental-health.pdf (on file with the Columbia Law Review) [hereinafter APA Task Force Report] (explaining methodological issues and problems in abortion trauma research).
442. See, e.g., Anne Nordal Broen et al., Predictors of Anxiety and Depression Following Pregnancy Termination: A Longitudinal Five-Year Follow-Up Study, 85 Acta Obstetricia et Gynecologica 317, 322 (2006) (comparing mental effects of abortion to those of miscarriage);
443. Anne Nordal Broen et al., Reasons for Induced Abortion and Their Relation to Women's Emotional Distress: A Prospective, Two-Year Follow-Up Study, 27 Gen. Hosp. Psychiatry 36, 41-42 (2005) (demonstrating correlation between reasons for abortion and mental health); Gilchrist et al., supra note 128, at 243 (finding no increase in morbidity following pregnancy termination);
444. Brenda Major et al., Psychological Responses of Women After First-Trimester Abortion, 57 Archives Gen. Psychiatry 777, 777 (2000) (finding most women do not experience psychological problems two years following abortion);
445. Nancy Felipe Russo & Kristin L. Zierk, Abortion, Childbearing, and Women's Well-Being, 23 Prof. Psychol.: Res. & Prac. 269, 269 (1992) (finding no evidence of widespread post-abortion trauma over eight-year span);
446. Sarah Schmiege & Nancy Felipe Russo, Depression and Unwanted First Pregnancy: Longitudinal Cohort Study, 331 Brit. Med. J. 1303, 1305 (2005) (criticizing evidence connecting abortion and depression);
447. cf. Amy Salisbury et al., Maternal-Fetal Attachment, 289 J. Am. Med. Ass'n 1701, 1701 (2003) (evaluating phenomenon of maternal-fetal attachment).
448. For a review and evaluation of the most current empirical literature on mental health problems among women who have abortions, see APA Task Force Report, supra note 249, at 92 ("[T]he most methodologically sound research indicates that among women who have a single, legal, first-trimester abortion of an unplanned pregnancy for nontherapeutic reasons, the relative risks of mental health problems are no greater than the risks among women who deliver an unplanned pregnancy.").
449. There has also been a lively back and forth between two major researchers in the field over this point. Compare David C. Reardon, Abortion Perils Debated, 169 Can. Med. Ass'n J. 102, 102-03 (2003) (defending his research about harms of abortion), and Reardon et al., Psychiatric, supra note 247, at 1253 (finding negative mental health effects of abortion), with Brenda Major, Abortion Perils Debated, 169 Can. Med. Ass'n J. 103, 103 (2003) (criticizing Reardon's findings about mental health effects of abortion), and Brenda Major, Psychological Implications of Abortion-Highly Charged and Rife with Misleading Research, 168 Can. Med. Ass'n. J. 1257, 1257 (2003) (same).
450. Compare Walker, Terrifying Love, supra note 73, at 48-49 n.* (noting as yet unsuccessful feminist struggle to get BWS included in DSM as subcategory of PTSD), with Vincent M. Rue, Post-Abortion Syndrome: A Variant of Post-Traumatic Stress Disorder, in Post-Abortion Syndrome: Its Wide Ramifications 15, 20-21 (Peter Doherty ed., 1995) (claiming post-abortion syndrome is subset of PTSD).
451. See, e.g., Zoe Craven, Austl. Domestic & Family Violence Clearinghouse, Battered Woman Syndrome 9 (2003), available at http://adfvcnew.arts.unsw.edu.au/topics/topics-pdf-files/battered%20-woman- syndrome.pdf (on file with the Columbia Law Review) (stating "the results of Walker's study have never been replicated,"and that "it is arguable that her study and her resulting theory have failed to pass the test most scientifically recognised research is required to-that of external validity");
452. Faigman & Wright, supra note 81, at 75-79 (arguing legal system has been using BWS without adequate inspection of scientific validity of Walker's work);
453. Marilyn McMahon, Battered Women and Bad Science: The Limited Validity and Utility of Battered Woman Syndrome, 6 Psychiatry Psychol. & L. 23, 43 (1999) (criticizing scientific basis of BWS because of "substantial deficiencies in the methodological basis of relevant empirical research, poor conceptualisation of the notions of learned helplessness and the cycle of violence, internal inconsistency in the theory, and a confusion of findings legitimately derived from original research with those derived from the research of others");
454. Robert F. Schopp et al., Battered Woman Syndrome, Expert Testimony, and the Distinction Between Justification and Excuse, 1994 U. Ill. L. Rev. 45, 64 ("[Walker's data] supports the proposition that battered women do not suffer learned helplessness, at least as well as it supports the claim that they do.");
455. David L. Faigman, Note, The Battered Woman Syndrome and Self-Defense: A Legal and Empirical Dissent, 72 Va. L. Rev. 619, 622, 626 (1986) (arguing Walker's claim that battered women develop "learned helplessness" lacks verifiable empirical support).
456. But see, e.g., Debby L. Roth & E.M. Coles, Battered Woman Syndrome: A Conceptual Analysis of Its Status Vis-à-Vis DSM IV Mental Disorders, 14 Med. & L. 641, 656 (1995) ("[T]here is sufficient information about battered woman [sic] to justify . . . serious consideration of the battered woman syndrome as a form of post-traumatic stress disorder.").
457. See generally Craven, supra note 253;
458. McMahon, supra note 253; Faigman, supra note 253.
459. See, e.g., Cal. Evid. Code § 1107(b) (1991) ("Expert opinion testimony on battered women's syndrome shall not be considered a new scientific technique whose reliability is unproven.") (current version at Cal. Evid. Code § 1107(b) (2006) (referring to "intimate partner battering and its effects" in lieu of "battered women's syndrome"));
460. Tex. Penal Code Ann. § 19.06 (Vernon 1992) (current version at Tex. Cr. Code Ann. § 38.36 (2003)) (permitting murder or manslaughter defendant to offer "relevant expert testimony regarding the condition of the mind of the defendant . . . including those relevant facts and circumstances relating to family violence");
461. Ibn-Tamas v. United States, 407 A.2d 626, 639 (D.C. Ct. App. 1979) (holding expert testimony about BWS is admissible); Rogers v. State, 616 So. 2d 1098, 1099-100 (Fla. Dist. Ct. App. 1993) (noting "the clear trend across the United States towards admissibility of expert testimony on battered woman's syndrome,"and concluding that "[b]ecause the scientific principles underlying expert testimony relative to the battered woman's syndrome are now firmly established and widely accepted in the psychological community, . . . the syndrome has now gained general acceptance in the relevant scientific community as a matter of law"); State v. Kelly, 478 A.2d 364 passim (N.J. 1984) (extensively citing and quoting Walker, The Battered Woman, supra note 73, in support of admitting testimony on BWS).
462. See, e.g., Havell v. Islam, 718 N.Y.S.2d 807, 811 (Sup. Ct. 2000);
463. Marchant v. Marchant, 743 P.2d 199, 203-04 & n.3 (Utah Ct. App. 1987).
464. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 891-92 (1992) (plurality opinion) (citing Walker, BWS, supra note 73).
465. One prominent example of such controversy involved a 1998 empirical study, Bruce Rind, Philip Tromovitch & Robert Bauserman, A Meta-Analytic Examination of Assumed Properties of Child Sexual Abuse Using College Samples, 124 Psychol. Bull. 22 (1998), that found that college students who had been sexually abused as children were not more maladjusted than those who had not been abused, and suggested that child sex abuse does not necessarily cause long-term psychological injury. Id. at 42.
466. The study led to public furor including resolutions in both houses of Congress condemning it, and repudiation by the American Psychological Association, which had earlier defended the study's scientific quality. See Scott O. Lilienfeld, When Worlds Collide: Social Science, Politics, and the Rind et al. (1998) Child Sexual Abuse Meta-Analysis, 57 Am. Psychologist 176, 180-81 (2002) (describing APA's and Congress's reactions to Rind study).
467. See Krista L. Duncan, "Lies, Damned Lies, and Statistics"? Psychological Syndrome Evidence in the Courtroom after Daubert, 71 Ind. L.J. 753, 757-67 (1996) (discussing history of debate about admissibility of PTSD, RTS, and BWS);
468. cf. Elizabeth Bartholet, Family Bonds: Adoption and the Politics of Parenting 175-81 (1993) (discussing and criticizing research on "adoption trauma"). See generally Donna A. Gaffney, PTSD, RTS, and Child Abuse Accommodation Syndrome: Therapeutic Tools or Fact-Fin ding Aids, 24 Pace L. Rev. 271 (2004) (discussing various trauma syndromes).
469. See, e.g., Rachel B. Needle & Lenore E.A. Walker, Abortion Counseling: A Clinician's Guide to Psychology, Legislation, Politics, and Competency 119-33 (2008).
470. Siegel, Right's Reasons, supra note 8, at 1646.
471. Siegel, Dignity, supra note 8, at 1714-23;
472. Siegel, New Politics, supra note 7, at 1014-29;
473. Siegel, Right's Reasons, supra note 8, at 1664-68.
474. Siegel, New Politics, supra note 7, at 999-1002, 1008, 1036. But cf. Ashley Gorski, Note, The Author of Her Trouble: Abortion in Nineteenth-and Early Twentieth-Century Judicial Discourses, 32 Harv. J.L. & Gender 431, 433 (2009) (complicating picture of paternalism in abortion law by arguing "pragmatism, not nineteenth-century gender ideology, was the primary impetus" for treatment of women who had abortions as victims rather than criminal defendants).
475. Siegel, Right's Reasons, supra note 8, at 1687.
476. Siegel, Dignity, supra note 8, at 1767-93.
477. Id. at 1705.
478. Elizabeth Fox-Genovese offers a contrasting view of dignity and motherhood: Under the urging of feminists, the Supreme Court . . . has embraced reasoning that depicts pregnancy and motherhood as encumbrances upon a woman's dignity as an individual and an illegitimate curtailment of her rights as an individual. According to this reasoning, a woman has a fundamental right to abortion because pregnancy and motherhood diminish her dignity and restrict her rights as an individual. Thus, to enjoy full dignity and rights as an individual, a woman must resemble a man as closely as possible. It is difficult to imagine a more deadly assault upon a woman's dignity as a woman. For this logic denies that a woman can be both a woman and a full individual. Elizabeth Fox-Genovese, Wrong Turn: How the Campaign to Liberate Women Has Betrayed the Culture of Life 9-10, at http://uffl.org/voll2/foxl2.pdf (last visited Mar. 1, 2010) (on file with the Columbia Law Review).
479. See Gonzales v. Carhart, 550 U.S. 124, 183-85 (2007) (Ginsburg, J., dissenting) (arguing Court's reasoning "reflects ancient notions about women's place in the family and under the Constitution-ideas that have long since been discredited"); Goodman, supra note 11 (arguing Court's reasoning takes "the decision out of [a woman's] hands").
480. Toobin, supra note 3.
481. Grossman & McClain, supra note 3.
482. S.D. Task Force Report, supra note 26, at 4.
483. Id. at 40.
484. Elliot Inst., Forced Abortion in America: A Special Report 2 (2007), available at http://www.afterabortion.org/petition/Forced-Abortions.pdf (on file with the Columbia Law Review) (claiming 64% of abortions include some form of coercion); see also Abortion and Domestic Violence, Post-Abortion Rev., Jan. 2004, at 13, available at http://afterabortion.info/vault/Bobbitt-Report.pdf (on file with the Columbia Law Review) (connecting "violence in the womb and violence in the home"and claiming "it is not a coincidence that the rates of abortion and domestic violence have risen together during the last twenty-five years"). For an explanation of Reardon's key role in the construction of the argument that abortion harms women, see Siegel, New Politics, supra note 7, at 1016-23. The Elliot Institute also has model legislation based on abortion's harm to women. See Elliot Inst., The Protection from High Risk and Coerced Abortion Act, Oct. 29, 1998, at http://www. afterabortion.org/leg/1999ModelwoSAID.htm (on file with the Columbia Law Review).
485. Elliott Inst., Print Ads, The Unchoice, at http://www.unfairchoice.info/ display.htm (last visited Mar. 1, 2010) (on file with the Columbia Law Review).
486. Baptists for Life, Inc., What About Abortion for Rape and Incest, at http://www.bfl.org/Issues-Answers/Abortion/Rape-Incest.aspx (last visited Mar. 1, 2010) (on file with the Columbia Law Review) (quoting David C. Reardon, Aborted Women: Silent No More 198 (1987));
487. see also, e.g., Juli Schwartz, Choosing Life: Journeys of Hope Born from Tragedy, 5 Am. Feminist 3, 4 (1998) ("Zibolski compares abortion to a second rape, another violation of her body and soul.");
488. Elliot Institute's Role, supra note 195, at 8 ("[M]any women feel sexually mutilated by their abortions . . . ."); Teens for Life, Abortion, at http://teensforlife.com/hot-topics/abortion/ (last visited Mar. 1, 2010) (on file with the Columbia Law Review) ("In several studies done across America, women who were encouraged to use abortion in [circumstances of rape] felt that they had been put through a second act of violence, the violence and pain of the mechanical rape of abortion.").
489. See, e.g., Cano Brief, supra note 4, at 22 & nn.80-89, App. 11-106 (describing harmful effects of abortion on women).
490. Elliot Inst., Accomplices in Incest: "Denise Kalasky," at http://www.afterabortion.org/testimo.html (last visited Mar. 5, 2010) (on file with the Columbia Law Review); see also Schwartz, supra note 275, at 4 (comparing "abortion to a second rape, another violation of her body and soul"and noting additional shame resulting from abortion experience).
491. Pro-Life Am., Testimonials of Women Who Have Had Abortions, at http://www.prolife.com/ABRTWM2.html (last visited Mar. 5, 2010) (on file with the Columbia Law Review).
492. Seminarian Life Link, Testimonies, at http://www.seminarianlifelink.org/ postabortion/testimonies.htm (last visited Mar. 1, 2010) (on file with the Columbia Law Review); cf. Brief of American Center for Law and Justice as Amicus Curiae Supporting Petitioner at 19, Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320 (2006) (No. 04-1144) (quoting woman's testimony that her abortion "was psychologically more devastating than being molested and sexually abused by [her] biological father").
493. Referring to Sharon Marcus's critique, Janet Halley calls this "the fallacy of the 'collapsed continuum,'" in which "[r]ape and pornography and sexual harassment and domestic abuse and prostitution and 'trafficking in women' and marriage and makeup and the Boy Scouts-they are all mere instances of the structure of male dominance and are basically all alike." Ian Halley, Queer Theory by Men, 11 Duke J. Gender L. & Pol'y 7, 23 (2004) (author also publishes as Janet Halley) (crediting Marcus, supra note 25, at 389).
494. See Siegel, Dignity, supra note 8, at 1724 ("The antiabortion movement was now positioned ... to answer the claims of the women's movement . . . [and] to appropriate feminism's political authority and express antiabortion argument in the language of women's rights and freedom of choice."); Siegel, Right's Reasons, supra note 8, at 1672-76 ("With this understanding of women's nature, rights, and interests, the antiabortion movement could finally answer feminist and pro-choice claims about women's rights.").
495. See, e.g., Women and Violence: Hearing on Legislation to Reduce the Growing Problem of Violent Crime Against Women Before the S. Comm. on the Judiciary, 101st Cong. 88-89 (1990) (statement of Roni Young, Asst. State's Att'y, Balt. City) ("[W]e need to make mandatory arrests and not leave it up to the whims of the victims."), quoted in Barbara Fedders, Note, Lobbying for Mandatory-Arrest Policies: Race, Class, and the Politics of the Battered Women's Movement, 23 N.Y.U. Rev. L. & Soc. Change 281, 290 n.52 (1997);
496. Leigh Goodmark, When Is a Battered Woman Not a Battered Woman? When She Fights Back, 20 Yale J.L. & Feminism 75, 120 (2008) (finding "increasing professionalism of the battered women's movement" has led to "mandatory arrest and 'no drop' prosecution" and other policies that "imply a belief that battered women cannot make rational choices at times of crisis and that professionals' judgment should be substituted for the women's own good").
497. Suk, supra note 200, at 41-50.
498. See id. at 36 ("Many DV misdemeanor cases charged in criminal court do not allege physical harm. The harm alleged may instead be psychological, financial, or to property." (footnotes omitted)).
499. See, e.g., Meritor Sav. Bank v. Vinson, 477 U.S. 57, 68 (1986) ("[T]he fact that sex-related conduct was 'voluntary,' in the sense that the complainant was not forced to participate against her will, is not a defense to a sexual harassment suit brought under Title VII. The gravamen of any sexual harassment claim is that the alleged sexual advances were 'unwelcome.'").
500. See Chamallas, Consent, supra note 21, at 859-60 (suggesting age and job conditions result in fundamentally asymmetric relationships).
501. Michelle J. Anderson, Ail-American Rape, 79 St. John's L. Rev. 625, 629-33 (2005) (finding nonconsensual sex without force is felony in sixteen states). In New Jersey, the statutory requirement of "force" is satisfied by the force inherent to sexual penetration. In re M.T.S., 609 A.2d 1266, 1276 (N.J. 1992).
502. Catharine A. MacKinnon, A Rally Against Rape, in Feminism Unmodified, supra note 61, at 81, 82.
503. Id.
504. Stephen J. Schulhofer, Unwanted Sex: The Culture of Intimidation and the Failure of Law 56-57 (1998).
505. See, e.g., Abortion Is the Unchoice, at http://www.theunchoice.com/intro. htm (last visited Mar. 5, 2010) (on file with the Columbia Law Review) ("Most abortions are unwanted or coerced . . . .").
506. Gonzales v. Carhart, 550 U.S. 124, 159 (2007).
507. In re Baby M., 537 A.2d 1227 (N.J. 1988);
508. see Siegel, Dignity, supra note 8, at 1730-32 (discussing Cassidy's role in rise of woman-protective antiabortion argument).
509. Baby M., 537 A.2d at 1234, 1248;
510. see also Katha Pollitt, Contracts and Apple Pie: The Strange Case of Baby M, Nation, May 23, 1987, at 667, 688 (calling contract motherhood "an inherently unequal relationship involving the sale of a woman's body and a child"). But see, e.g., Marjorie Maguire Shultz, Reproductive Technology and Intent-Based Parenthood: An Opportunity for Gender Neutrality, 1990 Wis. L. Rev. 297, 384 ("In holding that surrogates . . . must have an opportunity to change their minds after giving birth, the court reinforces stereotypes of women as unstable, as unable to make decisions and stick to them, and as necessarily vulnerable to their hormones and emotions.").
511. S.D. Codified Laws § 34-23A-10.1 (2007);
512. see Siegel & Blustain, supra note 7, at 23 ("Cassidy's vision ended up in South Dakota's bills in language that pro-choice activists say they have not seen in any other legislation so far.");
513. Bazelon, Telling Doctors, supra note 8 ("Cassidy also helped persuade state lawmakers that women might be scared out of having abortions if doctors were forced to enumerate the procedure's medical risks.").
514. See Sarah Blustain, The Right Not to Choose, Am. Prospect, Apr. 13, 2007, at http://www.prospect.org/cs/articles?article=the-right-not-to-choose (on file with the Columbia Law Review) (interviewing Harold Cassidy). Cassidy's personal website states that he has "devoted his practice to protecting the rights of pregnant mothers, particularly . . . where abortion providers have violated the rights of the mothers and subjected them to procedures without obtaining informed and voluntary consent." Harold J. Cassidy, Biographical Information, at http://www.haroldcassidy.com/bio.html (last visited Mar. 2, 2010) (on file with the Columbia Law Review). He claims he was "rather casually pro-choice" before he began hearing from women who had been psychologically harmed by abortions. Siegel & Blustain, supra note 7, at 23.
515. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992) (plurality opinion) ("These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.").
516. Siegel, Dignity, supra note 8, at 1694.
517. See, e.g., Cano Brief, supra note 4, app. at 22 ("Devalued, dehumanized me. Took away my dignity and self-worth. Suffered from shame and guilt. Became depressed and even attempted suicide. Also led to use of alcohol, drugs, and sexual promiscuity."); id. at 21 (stating women's testimonies of abortion trauma "refute the assumption that abortion enhances female dignity"); id. at 20 ("I suffer for the loss of my daughter but also for the loss of my dignity."); Amici Curiae Brief of 11,719 Women on Behalf of Appellants in Support of the Trial Courts Granting Defendants' Motion to Dismiss at 1, Marie v. Whitman, 314 F.3d 136 (3d Cir. 2002) (Nos. 01-1068, 01-1461) (arguing idea that "abortion brings autonomy and dignity to women" is "false claim that has hidden the reality of abortion from the courts");
518. Truth TV, After Abortion: Catherine's Letter, at http://www.truthtv.org/ abortion/women/womens-letters/catherine/ (last visited Feb. 28, 2010) (on file with the Columbia Law Review) ("They are destroying us, stripping us of our dignity and, worst of all, ignoring our terrible plight by superficially caring-helping us to carry out the most gross act any human being could commit against another.").
519. See supra Part I (discussing consciousness-raising and Take Back the Night rallies);
520. see also Siegel, Right's Reasons, supra note 8, at 1659-69 (discussing key role crisis pregnancy counseling centers played in disseminating post-abortion syndrome discourse). A founder of the organization Women Exploited by Abortion explained the need to "create a safe place for any woman to speak freely about her own pain." Olivia Cans, When the Mothers Found Their Voice: The Emergence of the Post-Abortion Presence in America, Nat'l Right to Life News, Jan. 1998, available at http://www.nrlc.org/news/1998/NRL1.98/ (follow "When the Mothers Found Their Voice" hyperlink) (on file with the Columbia Law Review).
521. See, e.g., Brief of Sandra Cano et al. as Amici Curiae in Support of Petitioner at 10, 16-19, Acuna v. Turkish, 129 S. Ct. 44 (2008) (No. 07-1328);
522. Cano Brief, supra note 4, at 22 n.81, 25 n.89;
523. Brief of American Center for Law and Justice as Amicus Curiae Supporting Petitioner app. at la-37a, Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320 (2006) (No. 04-1144);
524. Brief for Feminists for Life of America et al. as Amici Curiae in Support of Appellants at *13-*14, *27-*28, app. at *15a, *24a, Webster v. Reprod. Health Servs., 492 U.S. 490 (1989) (No. 88-605), 1989 WL 1115184;
525. Brief of Amicus Curiae Justine M. Kyker in Support of Petitioner at *6, McCorvey v. Hill, 385 F.3d 846 (5th Cir. 2004), cert, denied, 543 U.S. 1154 (2005) (No. 04-967), 2005 WL 350211; see also Terry A. Maroney, Emotional Common Sense as Constitutional Law, 62 Vand. L. Rev. 851, 889-901 (2009) (analyzing "emotional common sense" of testimonials of women who regret their abortions).
526. McCorvey & Thomas, supra note 213, at 195.
527. Cano Brief, supra note 4, app. at 2 ("[C]ontrary to the facts recited in my 1970 Affidavit, I neither wanted nor sought an abortion. I was nothing but a symbol . . . with my experience and circumstances discounted and misrepresented."); id. app. at 3-5 (recounting how her family and her lawyer pressured her to have an abortion).
528. Id. app. at 6-7.
529. Id. app. at 9.
530. See, e.g., Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724, 734 (8th Cir. 2008) (en banc) (relying on Supreme Court's recognition of abortion trauma).
531. Cf. Arthur Kleinman, Writing at the Margin: Discourse Between Anthropology and Medicine 181 (1995) (discussing "social construction of human misery as PTSD").