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with the forceps and pulls it . . . through the cervix and vagina. . . . 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. . . . Once the fetus has been
evacuated, the placenta and any remaining fetal material are suctioned or scraped
out of the uterus. The doctor examines the different parts to ensure the entire
fetal body has been removed. (Gonzales: 1621)

The second account of abortion was a more feminine narrative, appropriately
sincere and tenderhearted. He quoted a nurse who witnessed a procedure to abort
a twenty-six-week old “baby” performed by a Dr. W. Martin Haskell:

Dr. Haskell went in with forceps and grabbed the baby™s legs and pulled them
down into the birth canal. Then he delivered the baby™s body and the arms “
everything but the head. The doctor kept the head right inside the uterus. . . . The
baby™s little ¬ngers were clasping and unclasping, and his little feet were kicking.
Then the doctor stuck the scissors in the back of his head, and the baby™s arms
jerked out, like a startle reaction, like a ¬‚inch, like a baby does when he thinks he
is going to fall. The doctor opened up the scissors, stuck a high-powered suction
tube into the opening, and sucked the baby™s brains out. Now the baby went
completely limp. . . . He cut the umbilical cord and delivered the placenta. He
threw the baby in a pan, along with the placenta and the instruments he had just
used. (Gonzales: 1622)
Atmospherics: Abortion Law and Philosophy 189

Justice Kennedy was working on emotions as much as offering facts. He was inviting
readers to share his belief that the intact D&E or D&X procedures on living fetuses
are ghoulish, something a true mother would recoil at discovering her physician
had done to her unborn “child.” In Kennedy™s words: “The State has an interest in
ensuring so grave a choice is well informed. It is self-evident that a mother who
comes to regret her choice to abort must struggle with grief more anguished and
sorrow more profound when she learns, only after the event, what she once did not
know: that she allowed a doctor to pierce the skull and vacuum the fast-developing
brain of her unborn child, a child assuming the human form” (Gonzales: 1634).
Justice Kennedy knows that mothers voluntarily seek out physicians to fatally
abort their children. Yet he wants to believe they are naturally tender on matters
relating to children. Kennedy surmises that mothers would likely be disturbed by
partial-birth abortion and unwilling to consent to the D&X procedure if properly
disclosed by a physician. There are many reasons to doubt this assumption. First
of all, a woman whose belly is swollen with a pregnancy knows what lies therein
(namely, a living human form), and she knows that there are only a limited number
of ways to remove it. When abortion was illegal, a desperate woman might insert
coat hangers and knitting needles through her own cervix to kill her fetus. She
might ¬‚ing herself down ¬‚ights of stairs toward the same end. Women understand
basic anatomy and are grateful that modern physicians can safely do what they
themselves cannot safely do on their own. Women generally understand, I would
submit, that after the ¬rst trimester of pregnancy, the body of a fetus has to be
physically removed or made to come out on its own through a small opening.
Women know that physicians do not use laser beams to neatly and painlessly
vaporize the unwanted unborn.
Second, a woman might rationally believe that the D&X procedure is the best
and safest procedure available for the termination of a pregnancy she believes is
vitally important to herself or loved ones. This belief may override any tendency
toward squeamishness. A woman may regard a partial-birth abortion as a lesser of
two evils, if an evil at all. Women™s morality of killing as applied to abortion is like
men™s morality of killing applied to war “ subtle and contextual.
Third, women are not especially squeamish about surgical procedures. Women
elect cosmetic procedures on their own bodies that are extremely risky, invasive,
and gruesome to witness and describe. Women authorize invasive heart, brain, and
transplant surgeries on their children, disabled spouses, and elderly parents when
they believe removing the top of a skull, sawing open a sternum, or taking out a
liver is the best option. Women are accustomed to blood and tissue exiting their
vaginas, as part of the menses. Some women prefer untidy, painful drawn-out
medical abortions despite the requirement that they examine bloody discharge
from their own bodies to look for the expelled embryo.
It is not the culture of medicine for physicians to be as explicit with patients as
they are with one another. Still, health-care consumers appreciate fully informed
consent. Many people, male and female, who discover that their consent to a
medical procedure was not fully informed are angry or unhappy. The common
law validates these reactions by recognizing that a procedure performed without
informed consent is battery and medical negligence. We do not ordinarily think
190 Anita L. Allen

that we should ban elective or medically necessary surgical procedures because
they could potentially be performed without fully informed consent. We typically
demand fully informed consent instead. Yet Justice Kennedy seemed to reason that
the possibility that physicians will not spell out the details of the D&X abortion
technique is a reason to ban the technique altogether.

She “ Justice Ruth Bader Ginsburg, a mother and the sole woman on the Supreme
Court after the retirement of Justice Sandra Day O™Connor “ could see through
Kennedy™s analysis. She recognized Kennedy™s maternalism and paternalism for
what they are. “This way of thinking,” she wrote in an animated dissent, “re¬‚ects
ancient notions about women™s place in the family and under the Constitution “
ideas that have long since been discredited.” She appropriately cited the discredited
Muller v. Oregon (422“3), which upheld “protective” legislation imposing work-
hour limitations on women in view of the supposed “physical structure and a
proper discharge of her maternal funct[ion].” Ginsburg also cited the infamous
Bradwell v. State, in which the Supreme Court upheld an Illinois statute denying
women the right to practice law. Citing (his conception of) natural law, Justice
Bradley concurred in Bradwell (141): “Man is, or should be, woman™s protector
and defender. The natural and proper timidity and delicacy which belongs to
the female sex evidently un¬ts it for many of the occupations of civil life. . . . The
paramount destiny and mission of woman are to ful¬l[l] the noble and benign
of¬ces of wife and mother.”
Bradwell rather than Casey is the real precedent for Justice Kennedy™s analy-
sis in Gonzales. Justice Kennedy was sadly out of step with the times and with
court decisions of recent decades that disallow “archaic and overbroad gener-
alizations . . . such as assumptions as to [women™s] dependency” (Califano: 207)
and “overbroad generalizations” about the “talents, capacities, or preferences” of
women that “have . . . impeded . . . women™s progress toward full citizenship stature
throughout our Nation™s history” (United States v. Virginia: 543n12). Kennedy
seemed to miss the egalitarian strand of Casey, which he repeatedly cited to sup-
port restrictions on abortion. Justice Ginsburg made the point: “Though today™s
majority may regard women™s feelings on the matter as ˜self-evident,™ this Court
has repeatedly con¬rmed that ˜[t]he destiny of the woman must be shaped . . . on
her own conception of her spiritual imperatives and her place in society.™ Casey,
505 U.S., at 852. See also id., at 877 (plurality opinion) (˜[M]eans chosen by the
State to further the interest in potential life must be calculated to inform the
woman™s free choice, not hinder it.™)” (Gonzales: 1650). Kennedy set aside realism™s
call for progressive reforms and scienti¬c data in favor of natural law™s self-evident
metaphysic of true womanhood. Maternalism and paternalism demand unsel¬sh
motherhood and, for women, the guidance of male superiors. It is notable that the
Partial-Birth Abortion Ban Act criminalizes the conduct of abortionists but not
of their female patients who are presumed to be uninformed or misinformed and
therefore innocent. But women seeking abortions are probably no less informed
that women seeking other medical procedures. They should not be presumed
Atmospherics: Abortion Law and Philosophy 191

victims of cruel-minded clinicians wielding scissors of destruction. They should
get no free pass from complicity and responsibility.

Paternalism insults pregnant women, who make life-shaping choices every day.
Women decide whether to place senile parents in a nursing home and pull the plug
on their life support. Women decide whether to authorize experimental surgery for
their children and whether to prefer mastectomy to lumpectomy for themselves.
Lawmakers should not suppose that special paternalistic intervention is needed in
the abortion context that is not needed elsewhere when important decisions must
be made. Where are all the guardians of women™s safety when they are being sold
risky variable-rate mortgages?
Today, American society seems prepared to presume women™s competence to
run their own lives and to run for president, but abortion opponents rush to
assume that women™s psychological health must be in jeopardy if they abort.
True women must naturally regret abortions, ¬nd them depressing. Women must
therefore be discouraged from abortion, led to alternatives like horses to water.
Ginsburg™s dissent in Gonzales broke through all the tired, twisted nineteenth-
century nonsense of women™s health.
Of course a small minority of women bent on terminating the lives of their
fetuses may well need paternalistic intervention. Women with mental illnesses, for
example, may be unable to manage pregnancy on their own. A thirty-seven-year
old businesswoman with four living children, Christy Freeman, hid four dead
fetuses on her property. Freeman may have intentionally caused four separate
stillborn births. Or maybe products of natural miscarriages were a kind of fetish
for her disjointed maternalism. The four corpses were discovered after Freeman,
covered with bruises and showing signs of having given birth, appeared at a hospital
near her Ocean City, Maryland, home without a baby. Police discovered a recently
deceased twenty-six-week old male fetus in Freeman™s home wrapped in a towel
under her bathroom vanity, another in her Winnebago, and two others wrapped in
plastic in a trunk. Freeman was charged with the murder of the recently deceased
male fetus, although she “told police she had delivered a deformed baby, which she
called ˜gloopity glop,™ and that she had ¬‚ushed the fetus down the toilet. According
to the charging documents, though, the baby was a ˜viable fetus/infant,™ with hands,
feet and facial features” (“Investigators”).
A minority of women need to be protected from self-harm and cruelty. We can
reject maternalism and paternalism in abortion law without denying this reality.
Some unfortunate women like Christy Freeman need serious help making choices
and coping with the consequences of their choices, but the Court should not water
down Roe v. Wade on their account.


“Bodies of 4 Infants Found at Maryland Home.” New York Times, July 31, 2007, A15.
Bradwell v. State, 16 Wall. 130 (1873).
192 Anita L. Allen

Califano v. Goldfarb, 430 U.S. 199 (1977).
Gonzales v. Carhart, 127 S. Ct. 1610 (2007).
Hodgson v. Minnesota, 497 U.S. 417 (1990).
“Investigators Work to Tie Dead Fetuses to Taxi Driver.”
13788193/detail.html (July 31, 2007).
Llewellyn, Karl. “On Philosophy in American Law.” U. Pa. L. Rev. 82.3 (1934): 205“12.
Muller v. Oregon, 208 U.S. 412 (1908).
Partial-Birth Abortion Ban X, Pub. L. No. 108-105, H.R. 760, sec. 3, 18 U.S.C. 1531.
Pfaelzer, Jean. Driven Out: The Forgotten War against Chinese Americans. New York: Random
House, 2008.
Planned Parenthood v. Casey, 505 U.S. 833 (1992).
Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976).
Plessy v. Ferguson, 163 U.S. 537 (1896).
Roe v. Wade, 410 U.S. 113 (1973).
Rust v. Sullivan, 500 U.S. 173 (1991).
Stenberg v. Carhart, 530 U.S. 914 (2000).
United States v. Virginia, 518 U.S. 515 (1996).
Webster v. Reproductive Health Services, 492 U.S. 490 (1989).
part five. law, rhetoric, and practice theory
23 Foundationalism and Ground Truth in
American Legal Philosophy: Classical Rhetoric,
Realism, and Pragmatism
eileen a. scallen

One of the visual clich´ s in modern newscasts is a clip of a hapless reporter
standing in the midst of a hurricane, blizzard, ¬‚ood, or other natural disaster. I am
sure I am not alone in wondering, “What is that idiot doing out there?” It turns
out this is a melodramatic representation of a standard concept in meteorology,
known as “ground truth.” Ground truth is provided by professional or volunteer
spotters who are in a position to observe and report weather conditions as they are
being experienced on “ well “ the ground. Although modern meteorology uses a
wide range of sophisticated remote sensing technology, “[o]nly a spotter can see a
tornado” (McAuliffe 2007). Ground truth is also used in cartography and military
operations, where even high-de¬nition remote sensing devices, including satellite
imagery and aerial photographs, can provide misleading or inaccurate information
unless compared with and connected to observed conditions on the earth. In the
military and international law contexts, ground truth is used in opposition to other
kinds of truth, such as “legal truth” (Warren 1996: 50) or “paper truth” (C´ rdenas
2004: 1343). In each of these cases, the use of generalized or abstract knowledge is
balanced with contextual, ¬rsthand observation and reporting: ground truth.
Advocates of ground truth suggest that it is often more accurate than the abstrac-
tion it validates. Yet ground truth makes no claim of perfection. Ground truth can
be dead wrong; a spotter can miss the funnel cloud or mischaracterize the con-
dition (e.g., categorizing sleet as hail). To use a different example, remote sensing
technology and ground intelligence can report the existence of weapons of mass
destruction at a particular location. But, shortly thereafter, no such weapons are
found. Yet no one suggests abandoning the concept of ground truth in meteorology
or intelligence gathering. Ground truth is integral to these ¬elds. This essay sug-
gests that ground truth is also essential to the philosophy and practice of American
law “ whether we like it or not.
And some of us do not like it, stressing instead the need to reach “the ground
truth” (Park and Saks 2006: 977). However, ¬nding the ground truth should not
be confused with using ground truth. The use of the de¬nite article says it all.
Ground truth is one source of information, just as the abstraction it illuminates is
one source of information. Good intelligence gathering or meteorology demands
both kinds of information. In contrast, a demand for the ground truth reveals a
foundationalist belief in a singular, objective, and universal truth. Consequently,
| 195 |
196 Eileen A. Scallen

foundationalists, whether in religion, science, philosophy, or law, commonly
present us with this false dilemma: take the path to the ground truth or take
the path to the place where anything at all can pass for truth (radical relativism)
or where there is no truth at all (radical skepticism).
Law is particularly susceptible to foundationalist calls for the ground truth.
Recent controversy over the admissibility of scienti¬c and social science evidence
at trial re¬‚ects this dilemma. Some writers suggest that expert testimony based on
any basis other than empirically tested hypotheses should be dismissed as “junk
science” (Huber 1991). Others have suggested that evidence scholarship can be
“dangerous” when it examines issues other than increasing the accuracy of verdicts,
such as the social, economic, or political implications of evidence law (Park and
Saks 2006: 1028, 1030). Finally, although no one seriously disputes the need for
application of strict empirical testing for questions of natural science, con¬‚icts arise
over the admissibility of clinically based expert testimony, including syndrome evi-
dence (Slobogin 2007: 6). Such evidence is often used to make legal decisions about
criminal mental states, such as premeditation or intent, but is highly controversial.
This is not surprising, for these questions are among the most dif¬cult, if not impos-
sible, to subject to rigorous controlled testing. States of mind are not re¬‚ections
of objective reality “ criminal prosecutions focus on the mental state at the time
of the crime. Thus, Christopher Slobogin (2007: 44) argues that, “although ascer-
taining objective truth might be possible with respect to acts, narrative thinking
dominates attempts to reconstruct mental state” (emphasis in original). Such
expert testimony offered at trial “ the ground zero of the adversary system “ can be
denigrated by claims that it amounts only to “suppositional” tales of intent, told
by would-be Dostoyevskian novelists (Faigman 1989: 1073“7). However, Slobogin
and others argue that certain clinically based expert testimony can provide useful
context and perspective for decision making, including decisions made by lay
jurors whose life experience is far different from that of the defendant on trial.
Despite objections from foundationalists, the use of ground truth is alive and
well in American law. In this essay, I trace the con¬‚ict between foundationalism
and ground truth from one of its earliest manifestations in classical rhetoric to its
more recent appearances in American legal philosophy in realism and pragmatism.
I argue that the use of ground truth is not a defect of reasoning but rather enriches
our decision making. Decision making that uses ground truth does not require
us to abandon good science or empirical research. Hypothesis testing and valid
deductive reasoning are invaluable for producing certain conclusions. But humans
do not live by certainty “ or even statistically signi¬cant con¬dence levels “ alone.
The problem with foundationalism is not that it advocates the use of deductive
reasoning and empirical studies. Foundationalism is the fetishizing of deductive
reasoning and empirical studies. Foundationalism thus demeans the diversity and
richness of inductive reasoning based on context and experience “ ground truth
(i.e., unless ground truth can lead to a testable hypothesis).

Plato and his student Aristotle have dominated the legal academy™s view of classical
rhetoric. Yet there is a different branch of classical rhetoric, scorned or “ even
Foundationalism and Ground Truth in American Legal Philosophy 197

worse “ ignored by legal scholars. What to call this line of thought is debatable.
Some of its practitioners “ from Isocrates in ancient Greece to Cicero in ancient
Rome “ called it philosophy, which makes it sound rather respectable. Others,
such as Plato and Aristotle, damned it as sophistry. We might dismiss the choice
of labels as mere rhetoric, but the ability of language to create images and frames
of reference that have the power to shape human political, legal, and moral theory
is hard to deny.
Rhetoric, the study of argumentation and persuasion, was vital in ancient Greece
because of its particular political and legal structures. Participation in Greek polit-
ical and legal systems was restricted to particular members of society, free men.
But Greeks were not allowed to speak to the legislature through lobbyists or to
juries through lawyers. Some Greeks responded by hiring speechwriters to script
their arguments. Others sought out education to help them become better advo-
cates. One school was Plato™s Academy, which immortalized the Socratic dialogue,
a process through which the student could be disabused of false beliefs by a skilled
interrogator, until only the ground truth remained. Plato, an Athenian aristocrat
who was suspicious of Athenian democracy, distinguished his school of philosophy
from the schools of the Sophists. Because Plato believed in divine and absolute
truth, he found some Sophists, such as Protagoras and Gorgias, particularly offen-
sive for their relativism or skepticism. In addition to being a radical skeptic, Gorgias
was obsessed with the structure and sound of language, teaching complex alliter-
ation and stylistic excess. As a result, he was especially easy to parody in Plato™s
The problem with Plato™s portrait of the Sophists is that he paints all of them
with this same oversimpli¬ed brush. In fact, there were signi¬cant differences
among the individuals whom Plato labels as Sophists. The best way to illustrate
this is to describe Plato™s competitor Isocrates, who Plato called a Sophist but who
considered himself a philosopher and attempted to distinguish himself from the
other Sophists. Many of the Sophists were itinerant teachers, taking their shows
on the road and accepting any student who could pay their fees. Moreover, some of
these Sophists focused narrowly on speci¬c tricks of argumentation. In this sense,
these Sophists were more akin to today™s continuing legal education presenters
who promise to teach their students to dazzle any jury in ten easy steps.
In contrast to these Sophists, Isocrates founded a permanent school of higher
education in Athens and selected students with an aptitude for education, not
just anyone who paid the tuition. Most important, the concept of rhetoric at
the heart of Isocrates™ school required broad and rigorous study in a variety of
subjects. Today we might call it a liberal arts curriculum, requiring the study of
philosophy, science, mathematics, literature, history, and communication. Unlike
other Sophists, however, Isocrates did not believe that moral excellence or virtue
could be taught or transferred from teacher to student. Instead, his notion of
practical wisdom emphasized the development of a student™s own moral character
through encouragement and inspiration.
Isocrates, however, aligned with the Sophists on the nature of moral principles
and truth. For Plato, these unchanging, universal, and absolute concepts existed
independent of humans. Isocrates, however, directed his students away from formal
198 Eileen A. Scallen

and abstract notions of truth and morality toward speci¬c contemporary and
historical problems. For Isocrates, natural ability plus the rigorous study of practical
political, social, scienti¬c, and legal problems produced an educated citizen who
could exercise his best judgment in service to the community: “For since it is not
in the nature of man to attain a science by the possession of which we can know
positively what we should do or what we should say . . . I hold that man to be
wise who is able by his powers of conjecture to arrive generally at the best course”
(Isocrates 1929: 271). Like other Sophists, Isocrates viewed the human world as
unclear and uncertain but accessible and manageable through language, which is
why the study of argumentation and persuasion was so important to the education
of the citizen-lawyer (Foss, Foss, and Trapp 2001: 3).
The school of Isocrates lasted for more than ¬fty years, and it was there where he
trained as many as one hundred students at a time, many of whom became leaders
of Athens and other parts of ancient Greece. The Romans Cicero and Quintilian
built on the teaching of Isocrates. These Romans were practicing lawyers as well
as philosophers who emphasized the use of ground truth in court and in the leg-
islature. Indeed, Cicero lamented the dominance of the foundationalist treatment
of law: “The followers of Socrates cut connection with the practicing lawyers and
detached them from the common title of philosophy, although the old masters
had intended there to be a marvelously close alliance between oratory and philos-
ophy” (Cicero 1959: 59). The in¬‚uence of Isocrates went far beyond the Roman
Empire, eventually reaching America in its formative years. Because of the lack
of formal law schools in the American colonies, Isocrates, Cicero, and Quintilian
served as the “law professors” of America™s earliest lawyers and prominent citi-
zens: John Adams, Alexander Hamilton, and James Madison (Richard 1994). The
leaders of America™s revolution certainly valued intellectual and moral principle
and unalienable rights; they were not against theory. But they also understood the
dangers of foundationalism, the limits of theory, and the value of ground truth in
a democracy.

The role of ground truth in American legal philosophy resurfaced in the early
twentieth century. As with the con¬‚ict between the schools of Plato and Isocrates in
ancient Athens, American legal realism arose in contrast with a foundationalist view
of American law, commonly called legal formalism. Adherents of legal formalism,
which reigned in American jurisprudence for a good part of the nineteenth century,
argued that law was an objective, universal, and absolute concept. As a result, law
could be discovered, collected, and organized in discrete subjects such as contracts,
torts, or property. Most important, law should be applied to the facts of a case by
a process of pure deductive reasoning.
As with the Sophists, it is dif¬cult to ¬nd one brand of legal realism. The realists,
which included distinguished legal scholars such as Felix Cohen, Jerome Frank,
Karl Llewellyn, and Max Radin, re¬‚ected a wide range of views. At one end of the
spectrum was Jerome Frank™s radical skepticism about judicial decision making,
Foundationalism and Ground Truth in American Legal Philosophy 199

arguing that judges decided cases on the basis of their particular personal biases or
beliefs and then justi¬ed them with whatever legal rules support the conclusion. As
in the case of the Sophists, this portrait of radical skepticism has become the image
of legal realism, perhaps because of its dramatic and unsettling quality. However,
other realists were far less skeptical but tried to use insights and empirical studies
from psychology, sociology, and political science to understand judicial decision
Brian Leiter (1997: 275“6) has argued that despite their considerable differences,
all legal realists subscribed to at least one “core claim” about adjudication: “in
deciding cases, judges respond primarily to the stimulus of the facts.” Or, phrased
in terms of this essay, all legal realists respected ground truth. Yet there were
differences in approach to ground truth. For example, N. E. H. Hull (1997: 313)
contrasts Roscoe Pound™s attempt to study the Chinese criminal justice system with
Karl Llewellyn™s study of the Cheyenne legal system: “Pound drafted and wished
to impose a Western-style social science survey on provincial of¬cials; Llewellyn
listened to local ˜law-men™ and tried to see the world through their eyes. Pound
wanted to generalize through extensive comparison and categorization; Llewellyn
wanted to particularize through the stories of individual cases.” Although many
realists, including Llewellyn, approved of the surge in empirical studies in the
social sciences, Llewellyn was not convinced that the scienti¬c approach could
produce by itself “a whole view of anything” (Twining 1973: 513). The appellate
judge, argued Llewellyn, made decisions by applying a “situation-sense.” Others
also stressed that a judge™s professional and social experiences provided a frame
of reference, or “type situation” (Radin 1925: 358), from which the judge would
view the facts of particular case and that had a profound impact on the outcome
of the case. Both notions of situation-sense and type situation rest on concepts of
ground truth “ the value of individual experience and context.
Although he never used the phrase “ground truth,” Llewellyn contended that

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