This draft is a definite improvement over the last draft, because it doesn't depend on assigning emotional states to people you disagree with on policy. The introduction retains its realism, which is very desirable. There are two remaining problems that should be considered.

First, the policy part of your essay lacks the realism you attain with Marianna's story. The House of Representatives is merely the bat-shit crazy antechamber to legislative activity in the US at present. In this, as in so many other areas, the question is solely what the White House will sign and what the Senate will pass. The House vote is simply an easy way for members of the majority to send messages home without actually doing something. Like voting 33 times to repeal the ACA, it's just sound and fury signifying nothing. Writing about it as though reasoned policy analysis had anything to do with it is unrealistic in the extreme.

The parties elected to go into these elections at loggerheads on all immigration and also on all "feminist" issues. It suits the Democratic campaign to run against the Republicans' "war on women" and "anti-Hispanic, anti-immigrant" bigotry. It suits the Republicans to hold high the banner of White, Christian America. Nobody gives a crap about VAWA reauthorization except "the groups," so if it dies in the crossfire that doesn't matter very much. If the Democrats do well in November, they can press it through next Congress, and if the Republicans win, it's dead forever anyway.

So whatever your essay is about in the end, it isn't that. Is it why U-visas are important? If so, why are they? Should undocumented immigrants who are the victims of crime be given working papers and an expedited chance at permanent residency as compensation? Should undocumented witnesses who help make certain forms of prosecution be given these benefits as rewards? Is it something about the condition of the domestic violence victim that makes this treatment specially appropriate? The general injustice of immigration controls, on the other hand, doesn't seem more implicated by Marianna's story if U-visas don't exist than so many other forms of immigration-control injustice we witness and hear about all the time. If there should be 10,000 slots for people like her, shouldn't there be tens of thousands of slots for equitable rectification of all those other injustices too? Maybe the real issue isn't the domestic violence at all, but the bizarre arbitrariness and disgracefulness of our immigration system.

Which brings us to the second problem: the relationship between the narrative of Marianna and the analysis that follows. Leaving aside, for the moment, the irrelevance of the particular nonsense created by the House of Representatives, what is the relationship between your personal experience of this client and any policy analysis? Are we being reminded to include her in the calculations? Or to think only of people like her? Or to be angry at anyone who does not think her interests primary? Or to appreciate that this is where you are coming from, the experience that drives your thinking?

The Violence Against (Some) Women Act

Creating Options

Upending the System

The U-visa system is in danger of being gutted by the recently passed House version of the Violence Against Women Act (HB 4970). Instead of increasing the number of U-visas, as in the Senate version, the House version would throw up roadblocks to make survivors like Marianna even less likely to report their abusers.

One of the most severe changes would remove the capability for U-visa holders to transition to lawful permanent residency. Currently, U-visas are valid for 4 years, but they can be transitioned into permanent-residency after the 4-year period for humanitarian reasons or to ensure family unity. The provisions of HB 4970 strike this option entirely for U-visa holders. This change is rationalized as a means to limit immigration into the US. But U-visas are limited to only 10,000 granted a year. That number would not change under HB 4970. Women like Marianna would only gain a temporary reprieve from immigration anxieties with few options of staying with their citizen children. Instead of increasing social good by prosecuting abusers and allowing mothers to stay with and care for their children, HB 4970 only increases the incentives for undocumented women to stay with their abusers or stay off the immigration radar by not reporting.

Even more troublesome are the changes to the U-visa application process itself. HB 4970 adds an in-person interview and investigation to the process. Prosecutors must still independently certify cooperation. But the petitioning alien is subjected to a trial of her own. Under HB 4970, she would have to report to the local immigration office for an in-person interview, where an officer is allowed to gather evidence unrelated to the domestic violence petition. Any evidence of past petitions for legal immigration status is allowed. The accused partner is also invited to present evidence about the petitioning victim. In cases like Marianna's, where the abuser is a green card holder, threats of deportation become much more real. The motivations behind these new provisions seem obvious, given that an immigration judge presides over all U-visa petitions anyway. By requiring victims to expose their lives to immigration officers, with no guarantee that the information discovered will not be used to deport them, HB 4970 tacitly encourages immigrant women to stay silent and suffer through abuse.

It should not be surprising that the current House is against more immigration. What is surprising is the context. Immigration policy involves a balancing of interests. But in this instance, the changes to the U-visa system show much more weight is being given to the appearance of a hardline on immigration than any idea of public good. No one wants to encourage immigration fraud. But if the U-visa system becomes so onerous, immigrant women will become even more vulnerable to abuse. Fears of deportation and inequalities in legal status already fuel many instances of domestic violence. HB 4970 turns the purpose of the Violence Against Women Act on its head and serves more abusers than it does victims.

(777 words)

-- JacquelineRios - 20 May 2012

But sodomy laws, whatever their foundation, present a different issue than laws about marriage, don't you think?

As cultural ideas of disgust change, so do the laws that are grounded in that emotion.

Grounded in what sense? Surely we don't have to ask in which emotion sodomy laws were historically enacted, or find disgust at the historic root of marriage law? Religious prohibition does not require any emotion of the legislator except faith, right?

For those who believe abortion is homicide, is "disgust" the emotion involved? That seems to call for an overbroad definition of disgust.

However, given that laws limiting abortion and birth control are frequently discussed together, discussing the rhetoric and rationalizations surrounding both is helpful.

Really? That doesn't seem to me to follow, unless there's an analytic step being taken that's not being articulated.

So, what is it about reproductive issues that make them such ripe targets for vicious opposition?

What is "vicious" meant to signify here? It isn't a synonym for "vociferous." What vice is responsible for the position being taken?

I'm not sure "incarnations" is the best word here. And in any event, I don't understand the logic of saying that opposition to requiring employers to pay for insurance that covers provision of contraception can't be based in religion because not all religions agree.

And abortion has not always been prohibited in the Catholic church.

Are you sure? How did you reach this conclusion? On what history do you depend?

Even within Catholicism, opposition to birth control is not widespread in practice.

But why is that important? The Church hierarchy doesn't ask what the laity does or thinks. It has guidance from above on the question, and behaves as a disciplined political and social organization, as it has done for almost two thousand years.

To say that religion is solely behind hostility to contraception is to give religion too much credit. Despite religious differences on the issue, religious freedom is currently being used to rationalize (largely symbolic) amendments allowing conscience and moral exceptions to the birth control mandate. The religious freedom argument becomes another form of "transcendental nonsense." It becomes a pretext for the functional consequences of denying birth control coverage.

I don't understand this graf. In the first place, political efforts to discredit and overturn the expansion of access to health insurance are motivated by a range of views that have nothing to do with the particular provision involved here. So there's a good deal of instrumentalism involved, on the part of people who couldn't care less about the specific question whether employers should be required, if they provide health insurance at all, to provide access for employees to policies that cover contraception.

In the second place, the Roman Catholic hierarchy in the US does indeed want to prevent federal law from requiring Catholic institutions to buy contraception coverage for employees, for religious reasons. They don't like this rule in the 28 states where it's already law. They see an excellent opportunityto restate their case on the national level, with the help of all the other political forces that would like to defeat the Administration and the President. Those, in turn, see an excellent opportunity to join forces with the Church in turning out its communicants against Obama in November. Evidently this isn't "solely" a religious reason for pushing on the controversy, but that point has no logical force in discrediting the sincerity of the Church's religious motives.

In the third place, the religious freedom argument isn't transcendental nonsense in anyone's system. For the Church hierarchy, the matter is indeed one of religious freedom as they understand it: they believe that they act under God's law, and that they have a moral obligation to oppose any effort to require them to obey secular law when it conflicts with the principles of their own legal system. That's not the principle of religious freedom our legal system propounds: for our courts, the free exercise right does not convey immunity from general regulations of secular purpose. Neither reading is transcendental nonsense: the question is one of conflict of laws, and the positions have direct factual correlatives. No US court could consistently accept the principle of church immunity from secular regulation advanced by the hierarchy, which is why none of the state regulations requiring the Church to pay for contraception coverage has been thrown out in the courts. The conduct of the argument has been political rather than legal. But the positions advanced are each coherent. It's just that in the US, one is wrong.

I don't understand why you're talking about "resistance to contraception." The Church would of course prohibit contraception if it were strong enough to do so, in the US or anywhere else, as it would prohibit free thought. That's the nature of the Roman Catholic Church as an institution. But despite the fulminations of one of the presidential candidates, that's not a discussable proposition in contemporary Euro-Atlantic society. The dispute has been about whether to share the costs of contraceptive pills and services across the entire premium base of the new, poorly organized national health insurance "system."

With the exception of the Church hierarchy, some talkative jerks on the radio, and one ex-Senator, even the voices that have been loud against the ACA have not been in favor of prohibiting access to contraception.

Why is libertarianism a more "true" form of conservatism than moral traditionalism?

Are you sure that's definitionally accurate? Even if it's accurate, why is it relevant?

I don't understand, with the possible exception of Limbaugh, who you think has expressed any contempt? Some analysis of the responsible argument you are discussing, including the words indicative of contempt, would be useful.

This doesn't seem fair at all to me. People who believe that abortion constitutes the unjustified killing of a human being don't have an argument about sex outside marriage or the procreative purpose of human sexuality to make. Their propositions are: (a) that a fetus is a human being, and (b) that abortion is unjustified killing under some or all circumstances. If we accept those propositions, the case for prohibition follows directly, without regard to other questions. Whether people feel contempt towards those they regard as killers seems to me not established and not material.

Additionally, legislation and rhetoric about reproduction takes a paternalistic view of women. Laws restricting abortion, including mandatory ultrasound regulations and waiting periods, start off with the view that a woman cannot fully comprehend the gravity of her decision.

Seen from outside, this may well be true. I would agree with it, for example. But seen from inside the relevant point of view, it would be more correct to say that such legislation takes a paternalistic view of children. Laws preventing killing children, it would be said, are preferable to laws discouraging the killing of children. But—given fundamentally unjust prior decisions declaring that women have a constitutional right to kill their children under certain circumstances—doing everything possible to bias the decision processes of individual mothers against killing their children is better than nothing. From this point of view, whether mothers are smart, stupid, virtuous, or vicious, they should be persuaded by any means available not to kill their children. Were we to grant the premises, it does not seem to me that we would be contemptuous of women to accept the conclusion. Must we refuse for some reason to accept the sincerity of those who do accept the premises?

Paternalism easily crosses over into contempt when the woman seeking an abortion is portrayed in culture as someone flippant about the procedure and her sexual activities.

What has that to do with law? Is law's justification reduced by the stupidity of any reason given on its behalf?

I think this draft is weakly argued. The idea animating it is clear enough. What would improve it is clearer and more exacting outlining, along with some judicious reference to the arguments you are encountering in the form in which they are actually made. At its best, the present draft triumphs over strawmen it has itself defined, not over real adversaries making their best arguments from their actual social contexts.

I am, I admit, puzzled by the effort to identify the emotions of people without making an equivalent effort to feel them. If one wants to treat others' arguments unsympathetically, never asking how the argument looks from the other side, logic gives some support to the approach. (Though, for reasons we have repeatedly touched upon, failing to understand how the argument looks from the other side usually weakens the argument we advance on our own.) But treating others' emotions unsympathetically, as though one could not oneself ever feel them, serves no persuasive purpose of any kind. Those with whom we disagree will certainly be unreceptive to any account that treats their emotions as distant phenomena. Understanding the unconscious, primary processes in the minds of people with whom we disagree has many virtues, of which one should be an enhanced awareness of their own experience as they live it.

Rationalizing Contempt

Emotions and Social Control

In our discussion of "law as the weakest form of social control," we considered why certain social issues were consistent points of tension. Issues like gay marriage and abortion remain wedge issues, causing some people to vote against their own interests. The emotional power of politics and campaigns is acknowledged, but seems to be only superficially understood. Fear of change, anger, and shame may explain certain reactions to social policy. Disgust is likely a better explanation of why certain issues gain cultural acceptance over time. Martha Nussbaum has written at length about disgust as a basis for anti-homosexual laws. Acceptance of gay marriage, for example, has likely increased over time since most young people, in contrast to older generations, do not experience the same reaction of disgust at the idea of gay relationships. As cultural ideas of disgust change, so do the laws that are grounded in that emotion.

Beyond Fear and Disgust

Fear and disgust, however, do not seem as effective in explaining opposition to reproductive issues such as contraception and abortion. These issues are, obviously, linked to heterosexual, procreative sex. But reproductive sex cannot illicit the same disgust response – we know it doesn't since people who express vocal opposition to abortion and birth control often have children. 99% of women will use a form of birth control at some point in their lives. Given this percentage, it seems unlikely that disgust towards procreative sex can explain the backlash against the birth control coverage mandate in The Affordable Care Act. Abortion is an issue that is more likely to be subject to disgust-based laws, based on differing views about the beginning of life. However, given that laws limiting abortion and birth control are frequently discussed together, discussing the rhetoric and rationalizations surrounding both is helpful. So, what is it about reproductive issues that make them such ripe targets for vicious opposition?

Religious Explanations

Political Culture

Progressive versus conservative ideals may have a part to play, but again, that alone would not explain why reproductive rights have remained so divisive. Conservatism, in its true form of supporting limited government, cannot explain why reproduction is often an acceptable site of government intervention.

Contempt and Reproductive Rights

If we look at debates over contraception and abortion with an eye towards identifying contempt, a pattern emerges in the rhetoric of people opposed to birth control in all forms.

People who use birth control are regarded with contempt because they have not met a cultural/religious/social standard (more likely, a myth) of sex being confined to procreation within marriage. In the marital context, procreation, intentional or not, is regarded with higher esteem. This view of sex relies on an idea that denies some basic realities about human sexuality, yet it persists.

Likewise, people who have or perform abortions are regarded with contempt, 1) because the sex that caused the pregnancy may have occurred outside of marriage, and 2) because termination of a pregnancy negates the procreative aspect (and supposed goal) of sex.

Additionally, legislation and rhetoric about reproduction takes a paternalistic view of women. Laws restricting abortion, including mandatory ultrasound regulations and waiting periods, start off with the view that a woman cannot fully comprehend the gravity of her decision. Paternalism easily crosses over into contempt when the woman seeking an abortion is portrayed in culture as someone flippant about the procedure and her sexual activities.

Contempt for contraception and abortion relies on a judgment that people who partake in these methods of birth control are somehow inferior in their practices. Given the realities about high percentages of birth control usage and sexual activity before marriage, contempt based restrictions and laws rely on rationalization and distancing. Lawmakers and voters are able to support these harsh restrictions by distancing supposed "promiscuous" or "immoral" sexual practices from a cultural ideal/myth about sex that they align themselves with. Attributing the rise of birth control usage to "liberals" or "radical feminists" instead of realities about the connection between reproductive autonomy and women's advancement creates a divide that allows laws based partly on contempt for female sexuality.

Examining Justifications

-- By JacquelineRios - 16 Feb 2012

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