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3.7 out of 5 stars
5
When Sex Counts: Making Babies and Making Law
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on January 22, 2013
Sherry Colb is a master at breaking down legal issues and helping you understand why certain decisions are made and what's at stake. She manages to provide new insight into even the most debated topics, such as abortion and adoption issues. A brilliant feminist mind.
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on December 1, 2012
This book is very accessible and has been a hit in my feminist book club. The articles cover a wide variety of topics in short, readable bits and are great for discussion.
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on April 11, 2007
A lively, thoughtful and thought-provoking series of essays. Professor Colb considers a variety of up to the minute issues relating to women and the law, and brings logic, penetration, and practical sense to bear on each of them.
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on November 21, 2007
I am a frequent reader of Professor Sherry Colb's Findlaw essays, collected in "When Sex Counts: Making Babies and Making Law" (As the columns are available free on line, buying "When Sex Counts" is not the most economic of decisions: I loaned it). While Reading Colb's essays individually, I sometimes disagreed with her, but I always found her reasonable and enlightening. I still think she's a good writer and a provocative thinker, but reading her work en masse leaves a different impression: Colb emerges as something of a radical feminist, and her views extreme and alien.

One problem with "When Sex Counts" is that Professor Colb fails to distinguish between constitutionally protected rights and politically preferable social outcomes. For example, Colb thinks that breastfeeding in public should be legal. So do I. But should Americans interpret the US Constitution as preventing regulation of public breastfeeding? Should people worldwide see public breastfeeding as a fundamental right beyond the reach of the legislature? I think not; Colb doesn't make her views clear one way or the other.

The main subjects of Colb's book are Abortion, Rape, and Sexual Harassment. Colb offers an interesting pro-abortion argument: Most pro choice advocates, I think, see abortion as an acceptable choice given the clash of interests between the woman, who is fully human, and the fetus, which is of emerging humanity, but which is not, at least at the early stages of the pregnancy, fully human. Thus abortion - at least early abortion - isn't murder

Colb's reasoning is different - she thinks that the humanity of the fetus is neither here nor there. A la Colb, preventing a woman from aborting makes her a prisoner in her own body (p.1). In a free country people are not forced to give their bodies over to others. Colb reminds us that we do not force Parents of sick children to donate a kidney or bone marrow to save them (p. 6). How can we therefore force a woman to be a prisoner in her own body for the sake of a child?

Since Colb brought up the prison argument, let consider a Jail related counter-analogy. In Israel and most of the western world, we do not have capital punishment. But we do have life sentences. Given that the criminal justice system - any system - can't be perfect, it follows that some people would spend all of their lives in prison for a crime they did not commit. Yet this is not a price we deem too high to pay - the safety of society is more important then the liberty of relatively few innocent people.

Given that we can keep people in prison for years for a crime they did not commit, why can't we force a woman to remain "a prisoner in her own body" for a few months? Unlike a criminal who might not commit another crime if he's released, late term abortion would mean the inevitable death of a human being. Furthermore, if we accept early term abortions, the woman could have aborted the fetus before it became a child, so she's contributed to her own situation (even assuming a contingency like rape in which the woman couldn't have used contraception).

Which analogy do you prefer? It doesn't really matter. As Richard Posner argues in Overcoming Law, reasoning by analogy is not reasoning at all. Analogies can't solve this or really any case.

I think for many people, the horribleness of late term abortion is such that our moral instincts dictate the answer. Colb herself tacitly recognizes this, by repeatedly attacking Pro-Lifers for mixing late and early term abortions. Against them, she makes the case for legalizing early abortions - it would reduce the number of late abortions (p. 43). She's probably right, though one cannot be sure - conceivably, decriminalizing early abortions would reduce the costs of unsafe sex, thus increasing the total amount of abortions, both early and late. But Colb doesn't complete her rational: prohibiting late term abortions would give women incentives to abort early. Instead she treads into Peter Singer territory, arguing that cruelty to animals is worse than cruelty to fetuses. I don't think many people would follow her there.

On date-rape, Colb thinks that society treats it as a less serious offence than rape-by-stranger. Colb points out that being raped by an acquaintance is actually worse then being raped by strangers because of the betrayal and the victim's tendency to blame herself (p.103). I think Colb is right on that, but I think she underestimates the problematics of date-rape - the problems of proving and defining consent.

Date Rape is unlike most crimes: only one person's state of mind distinguishes between a perfectly legal and commonplace practice and a crime. Thus proving date-rape is very difficult: it's a he said/ she said situation, and the risk of error is great.

Furthermore, the very concept of consent is as much a legal fiction as it is a social reality. Social interactions are complicated; they involve people of various ages, cultural backgrounds, and personal moralities. They also frequently involve intoxicating drinks and mood altering substances. The various stages of the sexual act probably diminish one's capacity for rational thought. Expecting people in the process of intercourse to always and every time correctly gauge the views of their partners may be unrealistic.

The final issue I have with Colb's book is the marginal role Colb leaves for the good of the child. Many of the issues, such as substance abuse by expecting mothers, restrictions on adoptions and the possibility of unwilling male parents to "financially abort" or not support a child, effect directly the well being of children. Yet Colb treats the interests of children as secondary at best. I don't know whether her views reflect US Family Law. In Israeli Law, as in Jewish Law, the interest of the child is supreme, and I think justly so.

This review is mostly critical; but while I often disagree with Colb and her approach, her book is enjoyable and thought provoking
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on April 3, 2009
Cornell Law Professor Sherry Colb writing for FindLaw Magazine writes a ghastly piece on abortion.

She's writing about the case where a woman attempted to procure a late term abortion but the abortionist wasn't on time and the baby was born alive gasping for breath, only to be thrown into a plastic bag and killed.

Now, Colb doesn't exactly excuse the abortionist's actions but examines them and seeks to codify them. But the language used is, I'm sure, unintentionally ghastly and cold. Reading her column sent chills up my spine.

Here's Colb's writing on the issue:
"One might argue, as some pro-life advocates have, that there is no meaningful difference between what Gonzalez did and what an abortion provider does, because in both cases, a fetus is killed. This argument, however, ignores one of the main premises of the right to abortion - the bodily-integrity interest of the pregnant woman. Particularly at the later stages of pregnancy, the right to abortion does not protect an interest in killing a fetus as such. What it protects instead is the woman's interest in not being physically, internally occupied by another creature against her will, the same interest that explains the right to use deadly force, if necessary, to stop a rapist. Though the fetus is innocent of any intentional wrongdoing and the rapist is not, the woman's interest in repelling an unwanted physical intrusion is quite similar."
Yeah. That's right. In her little metaphor the baby is a rapist.
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