About Abortion

Terminating Pregnancy in Twenty-First-Century America

Carol Sanger

• Publisher: Belknap Press
• Year: 2017
• ISBN:
  9780674977303
• Topic: Law
• Subtopic: Medical Law
• Index: Law

One of the most private decisions a woman can make, abortion is also one of the most contentious topics in American civic life. Protested at rallies and politicized in party platforms, terminating pregnancy is often characterized as a selfish decision by women who put their own interests above those of the fetus. This background of stigma and hostility has stifled women's willingness to talk about abortion, which in turn distorts public and political discussion. To pry open the silence surrounding this public issue, Sanger distinguishes between abortion privacy, a form of nondisclosure based on a woman's desire to control personal information, and abortion secrecy, a woman's defense against the many harms of disclosure.Laws regulating abortion patients and providers treat abortion not as an acceptable medical decision—let alone a right—but as something disreputable, immoral, and chosen by mistake. Exploiting the emotional power of fetal imagery, laws require women to undergo ultrasound, a practice welcomed in wanted pregnancies but commandeered for use against women with unwanted pregnancies. Sanger takes these prejudicial views of women's abortion decisions into the twenty-first century by uncovering new connections between abortion law and American culture and politics.New medical technologies, women's increasing willingness to talk online and off, and the prospect of tighter judicial reins on state legislatures are shaking up the practice of abortion. As talk becomes more transparent and acceptable, women's decisions about whether or not to become mothers will be treated more like those of other adults making significant personal choices.

1

About Abortion

For the last forty years abortion has embedded itself in American consciousness, American politics, and American culture with remarkable durability and reach. Looking only at the first two decades of this century—from Bush to Obama, to use presidential landmarks—abortion has been central to how Americans conceptualize, debate, and sometimes resolve all sorts of official things: nominations to the Supreme Court, asylum policy, health care reform, high school sex education, and what medical services will be provided to American servicewomen stationed overseas. Abortion has also been at the heart of disputes over what products Walmart keeps on its shelves and whether Super Bowl fans should watch or boycott half-time advertisements. Reliably divisive, the subject is never far out of sight. It stands at the ready to stir the pot or, depending on one’s viewpoint, to bring sudden clarity to whatever issue is under discussion.

Each year brings new controversies over something to do with abortion. In 2012, a publishing storm arose over whether a Doonesbury strip on abortion law in Texas (Nurse to Patient: “You’ll need to fill out these forms. Please take a seat in the shaming room”) should be carried on the funnies page, the editorial page, or canceled altogether.¹ In 2014, the crowd-funding site GoFundMe shut down a donation site raising money for an abortion. GoFundMe later clarified its terms of service to ban all fundraising related to abortion, gambling, or sorcery.² Miss America 2015 made headlines in the pro-life blogosphere for having interned at Planned Parenthood while a college student. “This will cast a shadow on her entire reign,” said Carol Tobias, the president of National Right to Life.³

There have been provocative rap video lyrics—the 2005 “Can I Live?” sung by a young black man to his abortion-minded mother as she lies on a clinic table next to a tray of surgical instruments (“Hopefully you’ll make the right decision / And don’t go through with the Knife incision”)⁴ as well as pop songs like Nicki Minaj’s 2014 “All Things Go” in which she muses on an earlier abortion (“My child with Aaron would be sixteen any minute”).⁵ There is also the slow creep of abortion into television programming, where, aside from Maude ages ago and a few modern exceptions, most unwanted pregnancies become either wanted (Sex and the City) or unnecessary (Girls) or are aborted because the shows are British (Prime Suspect) or Canadian (DeGrassi High).⁶ There is also the real-life drama of legislative politics: the all-night filibuster in 2013 by sneaker-clad Wendy Davis on the floor of the Texas Senate opposing a ban on abortion before viability, or the 2011 testimony (via ultrasound) of two fetuses before an Ohio legislative committee supporting a ban after the detection of a fetal heartbeat.

Other abortion controversies bring to the surface long-standing social tensions, such as those around race. In 2011, a huge billboard appeared in Manhattan featuring a pretty black child in a sundress above the caption “The Most Dangerous Place for an African American is in the Womb.”⁷ Similar billboards (“Black Children are an Endangered Species”) went up in Atlanta, all part of a pro-life outreach campaign to minority communities denouncing legal abortion as part of a genocidal plan.⁸ (Because nothing is simple when the subject involves abortion, the New York billboard generated a controversy of its own: the child’s picture had been taken at an unconnected photo shoot at a modeling agency; her mother demanded an apology for its use in an antiabortion campaign.⁹) More recently, the language of Black Lives Matter has been invoked to challenge pregnant black women considering abortion. A headline captures the message: “Planned Parenthood Kills Over 266 Unarmed Black Lives Each Day.”¹⁰

Abortion for the purpose of avoiding a girl (or boy) raises questions about discrimination on the basis of sex, or at least what some identify as sex discrimination and others consider nothing more than gender preference or “gender balancing” among one’s offspring. As one woman who sought a girl by selecting embryos through pre-implant genetic diagnosis stated, “I think it is a personal decision for us and it’s really nobody else’s business.… This is the United States and, and you know we get to do everything else we want to do.”¹¹ There is some evidence that a preference for sons has manifested itself in skewed girl–boy birth ratios within certain immigrant communities.¹² Perhaps in response, in 2013 Kansas and North Carolina joined six other states in criminalizing any abortion performed for the purpose of sex selection. (Whether such legislation is constitutional is another question.)

Erin Glockner of Pataskala, Ohio undergoes an ultrasound before the Ohio House Health and Aging Committee, March 2, 2011. Glocker’s nine-week fetus, seen on the jumbo screen to the right, and its amplified heartbeat were presented to a packed hearing room as testimony to show the materiality of fetal life.

Things seem to be about abortion even when the link to abortion is not on first glance entirely apparent: a ban on stem cell research, a bomb at the 1996 Atlanta Olympics, the furor over the vegetative Terri Schiavo, and congressional opposition to protective sex trafficking legislation in 2015 or to Zika prevention funding in 2016. Other asserted connections to abortion are not entirely accurate. Consider the assertion that abortion increases a woman’s chance of suicide or the Freakonomics claim that the legalization of abortion in 1973 explains a dip in the crime rate eighteen years later.¹³

There are also disputes over the preliminary question of whether an issue has anything to do with abortion at all. Such an example arose in the seemingly unlikely context of stillbirth. In recent years, states across the country have enacted what are called “Missing Angel Acts,” statutes that authorize birth certificates for stillborn infants. The acts resulted from lobbying by bereaved parents who argued that a fetal death certificate, the form of documentation that traditionally accompanied stillbirth, failed to capture the true nature of their loss: it was not a fetus who had died but a child who deserved the same official recognition as any other newborn.¹⁴

Despite enormous sympathy for the parents, concerns were raised that issuing birth certificates for children who never lived—certificates commemorating life before and in the absence of live birth—might over time play a part in the continuing campaign against abortion. Might, for example, states start issuing or even requiring birth certificates for aborted fetuses? Missing Angel supporters insisted that the legislation had nothing to do with abortion but was only about providing solace to grieving parents.¹⁵ The concern remained, however, that it may no longer be possible to cabin the cultural or political meaning of anything to do with fetal life or death in the United States. Compromises were reached and the language of the acts was clarified so that stillborn birth certificates could be issued only on parental request and never in the case of abortion. Still, however compassionately conceived, Missing Angel Acts may nonetheless deepen cultural familiarity with the fetus as a child, and once established the status may take on a life of its own; four states now provide parents with dependent tax deductions in the year of the stillborn baby’s birth.¹⁶ The Missing Angel example illustrates how cautious the subject of abortion has made everyone and how attentive citizens have become to even the possibility of a connection to abortion.

Why is it that so many issues end up having an abortion connection and that, once the connection is found, the issues become so susceptible to ignition? So many things in American public life are about abortion because abortion itself is about so many things—things in which people are invested as matters of faith or family, politics or moral principle, gender commitments or professional identity. This exploration of abortion’s “aboutness” begins by setting out the central categories into which abortion falls in order to ground the subject culturally and to show how much is at stake—how much bubbles up—when people talk about or around the issue.

What Abortion Is About

Abortion is, in the first instance, a medical procedure. The term “abortion” refers to the induced termination of a pregnancy. A leading obstetrics textbook defines “induced termination of pregnancy” as “the purposeful interruption of an intrauterine pregnancy with the intention other than to produce a live born neonate, and which does not result in a live birth.”¹⁷ Where abortion is legal, this is usually performed by a doctor either surgically (with instruments) or, since the development of the drugs mifepristone and misoprostol in the late 1990s, through induced miscarriage, or “medical abortion.” Within the medical, research, and public health communities, abortion remains an important aspect of obstetric care. Doctors and other medical professionals provide abortions to women in countries where it is legal, and they treat them after the fact in countries where it is not. Thirteen percent of all deaths included in maternal mortality statistics worldwide are deaths from unsafe abortions.¹⁸

The characterization of abortion as a medical procedure is important in non-clinical ways as well. It matters to how abortion is treated at law, for like most other forms of medical care, abortion is subject to regulation as part of the state’s general interest in the health and welfare of its citizens. Under the state’s “police power,” all doctors are licensed and all medical facilities inspected. Of course, the regulation of abortion is not quite the same as that of other medical procedures. Since the development of a robust pro-life movement following the Supreme Court’s 1973 decision in Roe v. Wade, abortion has become the most regulated medical procedure in the United States, with hundreds of laws pouring out of statehouses yearly.¹⁹

Abortion is also about rights. In Roe, the Supreme Court announced that a constitutional right of privacy was “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”²⁰ Until then, abortion had not been a right under the federal Constitution; it was simply legal in some states and illegal in others. And where it was illegal, abortion was not about rights or medicine. It was about crime and all that follows from that designation: the surveillance, prosecution, and punishment of abortion providers, though, it is interesting to note, not of women themselves. In many ways, abortion is still about crime even though it is no longer criminal. At the individual level, the furtiveness that often surrounds getting an abortion can make it feel criminal, and as a matter of politics, its legality seems ever up for grabs. Certainly abortion is still associated with crime, as sidewalk protesters plead with abortion patients not to kill their babies and as abortion providers are themselves shot and killed.

Abortion is about other claims to rights as well. Some of Roe’s most ferocious opponents are defenders of states’ rights who contend that the legal status of abortion should have remained a matter for state legislatures, and not federal courts, to determine.²¹ Some combine this with an insistence on democratic principles that all decisions about abortion should be made by legislative institutions, whether federal or state. These views about rights and institutional structure often link up with particular theories of constitutional interpretation, such as textualism and originalism. (Thus as part of their pro-life pledge, the 2012 Republican presidential candidates promised to appoint federal judges “committed to restraint and applying the original meaning of the Constitution.)”²² Because the word “abortion” is unmentioned in the text of the Constitution, there has been ongoing contestation about which (if any) of the provisions or animating values that are in the text provide the clearest and most hospitable accommodation for finding a right to abortion. In Roe v. Wade, the Supreme Court found that the right derived from a constellation—a “penumbra” in the Court’s inventive phrase—of other explicit provisions that protect aspects of privacy, like the Fourth Amendment prohibition on warrantless searches.²³ This view was resisted by those (including the four dissenting justices) who thought a right to choose abortion was itself an invention unsupported by constitutional text or precedent. In an influential 1973 article, constitutional law scholar John Hart Ely put the matter this way: “[Roe] is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.”²⁴

Other scholars and jurists, quite secure about the Court’s authority and the Constitution’s scope regarding abortion, suggest that the right might have been more satisfactorily framed not (or not only) in terms of privacy but in terms of other protected interests, such as sex equality.²⁵ In cases following Roe v. Wade, the Supreme Court itself has used the language of liberty and autonomy to characterize the nature of the right at stake. Others have invoked the First Amendment, prohibiting the establishment of religion by the state, and the Thirteenth, invoking the ban on i...