My position on what this means obviously hasn’t changed. The summary is that using the Gosnell case as a
pretext reason to restrict or ban safe abortions makes about as much sense as banning appendectomies because a surgeon committed Medicaid fraud.
Category: reproductive freedom
My position on what this means obviously hasn’t changed. The summary is that using the Gosnell case as a
Kirsten Powers attempts to advance the argument that the Gosnell case means that we should shut down abortion clinics that don’t act illegally. She inevitably fails miserably:
Abortion rights advocates have argued that there is nothing to see here. Move along. This is what illegal abortion looks like, they say.
But Gosnell’s clinic was not illegal. It was a licensed medical facility.
Uh, what? The fact that Gosnell worked in a “licensed medical facility” doesn’t mean that everything he did in the clinic is therefore legal, or that he was in compliance with his license. By the same logic, the dentist who exposed his patients to AIDS and hepatitis couldn’t have violated the law, because after all he had a license. If Gosnell performed medically unnecessary third-trimester abortions, or committed infanticide, or put his patients at risk by not properly maintaining his facilities, these things all violate Pennsylvania law even if he had a license.
And from this non-sequitur to another:
Gosnell was not forced to operate in the dark because of anti–abortion rights regulations. It’s the opposite: he was able to flourish—pulling in $1.8 million a year—because multiple abortion rights administrations decided that to inspect his clinic might mean limiting access to abortion
This is all nonsense. First of all, one of the administrations in question was famously opposed to abortion rights. (Who can forget when the Democratic Party did the worst thing in American history by denying Saint Robert Casey the chance to denounce a core party principle without even supporting the party’s candidate for president at the party’s convention? His son, of course, didn’t and doesn’t favor abortion rights either.) And while the Ridge administration was nominally pro-choice, its failure to inspect abortion clinics was a result of its Republicanism, not its pro-choice principles.
How is this OK? Even liberal Europe gets this. In France, Germany, Italy, and Norway, abortion is illegal after 12 weeks. In addition to the life-of-mother exception, they provide narrow health exceptions that require approval from multiple doctors or in some cases going before a board. In the U.S., if you suggest such stringent regulation and oversight of later-term abortions, you are tarred within seconds by the abortion rights movement as a misogynist who doesn’t “trust women.”
First of all, you can’t just look at laws on the statute books and determine how accessible abortions are. The fact that permission is required from doctors after 12 weeks tells us very little about what standards are applied in practice, and as the Supreme Court of Canada explained in great detail 25 years ago the availability of abortion under such laws varies wildly. And, again, you can’t abstract these statutory requirements from the larger context of abortion politics that determines the general accessibility of abortion. I would gladly take French abortion policy over Pennsylvania’s, because inter alia this would mean repealing the Hyde Amendment and making abortions easily accessible at public hospitals, as well as doctors making decisions without being harassed by a lobby that opposes the availability of safe abortions (for the wrong kind of women.) Virtually no American anti-choicers (including, it’s safe to say, Powers) would agree, of course.
Additionally, there is no upside in our media culture to challenging this sacred cow.
Yes, except for the fact that advancing these views mean there will pretty much always be room for you on our nation’s op-ed pages, or its virtual equivalents like The Daily Beast. Will people stop silencing Kirsten Powers already?
Roe v. Wade turns 40 today. This seems like a good opportunity to address some of the false things that are routinely said about it:
- Roe is unpopular. This is a particular favorite of Ben Wittes, who has argued that Roe has undermined the popularity of abortion rights. The main problem with this argument is that Roe has been and remains overwhelmingly popular:
- Roe created the anti-choice movement.Longtime readers will know this is a hobbyhorse of mine, and I’ve written about it at great length. The short version is that the idea that we would have arrived at the same place with less conflict had the Court not intervened is ahistorical nonsense. Opposition to abortion had already stopped abortion legalization at the state level by 1971, and there’s no evidence for the claim that judicial opinions produce more backlash than policies announced by the other branches.
- Overturning Roe would “return the issue to the states.” This all-too-frequent assertion runs into one of the most enduring laws of American politics: “nobody actually cares about federalism.“ Show me a Republican congressman who advocates that Roe be overturned to “send the issue back to the states,” and I’ll show you someone who has not only voted for every federal abortion regulation to come down the pike but advocates a constitutional amendment that would make abortion first-degree murder in all 50 states.
- Overturning Roe would be no big deal for abortion rights. Again, this is very wrong. The fact that national majorities support Roe certainly doesn’t mean that Republican majorities in a substantial number of states won’t recriminalize abortion if it is overruled. Equally problematic is the argument you hear sometimes that overruling Roe would be OK because it would increase mobilization among pro-choice groups. This argument runs into the same problem as arguments that it might be worth throwing the election to a Republican because this will generate more (ineffectual) opposition — pro-choice mobilization isn’t just an end in itself; it’s designed to, you know, secure public policy that protects the reproductive freedom of women. The most sophisticated and highly motivated lobbying strategy by pro-choice groups won’t make a legislature dominated by reactionary Republicans pro-choice. As I have argued elsewhere, the argument that overturning Roe would have some secret political advantages are “only compelling if the value of protecting a woman’s right to choose is accorded almost no weight.”
- Roe is only a rich woman’s right. This critique from the left actually has a plausible basis and a limited amount of truth. Since the Supreme Court has narrowly upheld the constitutionality of the Hyde Amendment and the regulations upheld by Casey disproportionately burden poor women, the current legal regime protects abortion access for poor women much less than it should. But even as diluted by Republican-dominated courts, Roe matters to poor women most of all. Affluent women, who will generally either have the connections to obtain gray market abortions or the resources to travel to a jurisdiction where abortion is legal, are likely to have reasonable access to abortion under any plausible legal regime. To women who lack these advantages, Roe matters substantially, even though both courts and legislatures should be doing more to protect abortion access for poor women. (Amanda has more on this general point.)
As I mentioned below, yesterday Arizona governor Jan Brewer signed a draconian abortion law that, among other things, effectively bans abortions after 18 weeks after conception. This law, like other attempts by state legislatures to ban pre-viability abortions, represents a substantial dilution of a woman’s right to choose. In addition, it’s worth noting that the law is plainly unconstitutional under current law.
Planned Parenthood v. Casey was a substantial retreat from Roe v. Wade, and a lot of the legislation passed by state legislatures that restricts a woman’s reproductive freedom was encouraged by the largely toothless “undue burden” standard the Court established to evaluate abortion regulations. But bans on abortion after 18 or 20 weeks — bans that precede viability — are clearly unconstitutional even under Casey. From the joint opinion written by Justices O’Connor, Kennedy, and Souter:
It must be stated at the outset and with clarity that Roe’s essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure.
The state cannot prohibit abortion before viability — the Court’s opinion is unambiguous on this point. There is no “fetal pain” exception, and nor should there be. As Caitlin Borgmann of the CUNY School of Law has shown, the “fetal pain” justification is a political strategy used by the anti-choice movement to equate fetuses with children, while “the research on fetal pain is at best inconclusive.” Whether Justice Kennedy would stand by the opinion he signed should a case concerning the constitutionality of such laws come to the Supreme Court is unclear. But as of now, the lower courts are required to stop such bills from going into effect by the plain language of Supreme Court precedent.
While yesterday provided a significant victory for progressive politics (and general ‘right thing to do’-ness), the forces of
moral fascism reactionary citizenry continue unabated.
In Kansas, a new licensing law for abortion providers has passed, under the ruse of establishing “safety standards” in a state described by the head of Operation Rescue as “the Wild West for abortionists for as long as anyone can remember.”
There are precisely three providers in the entire state.
For now. It’s absurd to imply that providers do not conduct business in line with professional standards of care, and this isn’t about that, obviously.
“These requirements range from the impossible to the absurd,” said Nancy Northup, president of the Center for Reproductive Rights. “They’re not designed to protect patient safety; they’re designed to shut down abortion providers.”
And of course, safety standards will be somewhat difficult to enforce when reproductive freedom is criminalized.
Moving south, The Guardian has a good piece describing “the creeping criminalisation of pregnant women as a new front in the culture wars over abortion, in which conservative prosecutors are chipping away at hard-won freedoms by stretching protection laws to include foetuses, in some cases from the day of conception.”
In Mississippi, this takes the guise of a law that makes miscarriages suspect under “depraved-heart murder” of the unborn foetus, which carries a mandatory life sentence. In one Mississippi case, the defense
have argued before Mississippi’s highest court that her prosecution makes no sense. Under Mississippi law it is a crime for any person except the mother to try to cause an abortion. ”If it’s not a crime for a mother to intentionally end her pregnancy, how can it be a crime for her to do it unintentionally, whether by taking drugs or smoking or whatever it is,” Robert McDuff, a civil rights lawyer asked the state supreme court.
In Alabama, the “criminal endangerment law”, originally passed with the goal of protecting the children of hobbyists running meth labs, has been employed in prosecutions not consistent with the original intent of the state legislature. The most grotesque case discussed in the article is that of Amanda Kimbrough, who
is one of the women who have been ensnared as a result of the law being applied in a wholly different way. During her pregnancy her foetus was diagnosed with possible Down’s syndrome and doctors suggested she consider a termination, which Kimbrough declined as she is not in favour of abortion.
The baby was delivered by caesarean section prematurely in April 2008 and died 19 minutes after birth.
Six months later Kimbrough was arrested at home and charged with “chemical endangerment” of her unborn child on the grounds that she had taken drugs during the pregnancy – a claim she has denied.
So here we have a woman, faced with a probable Down’s baby, who rejected termination as she doesn’t believe in abortion. Not exactly the archtype target of such legislation, yet her case is before a higher Alabama court on appeal.
The Democrats signed off on this as part of their vaunted
compromise rolling over and playing dead? The following is buried at the end of the NYT story linked above:
District of Columbia officials expressed outrage on Saturday about two provisions of the budget deal between Democrats and Republicans, saying they dictate how the capital should spend money. One bans it from using its own locally raised funds to pay for abortions for poor women. The second is a federally financed school voucher program, which city officials said was unnecessary because 40 percent of students already go to public charter schools.
I’m stunned. I shouldn’t be, but I am.
Not even freedom-hating anti-choice wingnuts could fail to see the irony in this, unless they don’t understand history.
Oh. Hang on.
Poll at The Stranger here (update: correct link now) to vote this “the worst ad placement ever”. h/t Richard Elgar.
One of the commenters in one of the threads I pursued to track down the original source indicated that the photo is from the Northern KY / Cincy area. This is the chain. Fortunately, LGM has a field office in the area to investigate the veracity of the photo.
Whereas we know that when abortion was legalized in America in the early 1970s, the abortion rate went up dramatically; we also know that Western Europe, which has lower abortion rates than the U.S., also has (somewhat) more restrictive abortion laws. Which suggests if you’re serious about reducing the abortion rate in America (as opposed to taking the “more abortion is a good thing” line that Matt espouses), the Edelstein-Saletan answer is something of a cop-out; if some kind of restriction isn’t on the table, you probably aren’t going to get very far.
A few obvious problems here:
- First of all, the comparative analysis cuts both ways. Since Western Europe also for the most part lacks powerful movements dedicated to opposing rational sex education and access to contraception for unmarried people and also has a stronger safety net (making it easier for poor women to bear children), its lower abortion rates don’t answer the dispute here; they’re just as consistent with the thesis that these policies lower abortion rates more than criminalization. Douthat also ignores Latin America, which has pretty much the exact mix of policies favored by most American anti-choicers (abortion bans, reactionary sexual and gender mores, threadbare safety net) and also has sky-high abortion rates.
- Douthat also makes the common error of conflating the quantity of formal restrictions on abortion with access to abortion. Since most European abortion restrictions are either similar to ones on the books in most American states or affect only the tiny fraction of late term abortions, the assumption that European women have less access to abortion than American women on the ground is highly problematic. Moreover, of the common non-ban regulations the most important is denying funding for poor women — which is available in most of Europe and not in most American states. And finally, Canada — which has almost entirely unregulated and state funded abortions — also has lower abortion rates than the United States; the same is true of the Netherlands, which effectively has state-funded abortion on demand (unless you consider showing a “state of distress” after 12 weeks is a difficult standard) for pre-viability abortions. This suggests again that the level of abortion regulation has fairly marginal effects on abortion rates.
- Finally, Douthat entirely ignores the key implications of the study. How could the marginal-at-best reductions in abortion rates possibly justify the arbitrary enforcement, grossly inequitable effects, and the great harm caused to women that are all endemic to the legal regimes Douthat advocates? Like most anti-choicers, Douthat simply hides under the table when the question comes up.
Bush’s new nominee to oversee family planning programs doesn’t like contraception; no surprise there. Ann notes that “pro-lifers” don’t really see anything in it for them if middle-class families have health insurance for their children. After explaining the deadly consequences of the new abortion ban in Nicaragua, Jill sums up:
In the meantime, countries with the most “pro-life” laws have higher abortion rates than the Western European countries with the most liberal abortion laws in the world. A large part of the difference is contraception — Eastern Europe has seen a 50 percent decrease in its abortion rate since contraception became more widely available post-Communism. And yet contraception is something else that mainstream anti-choice groups oppose.
Yes, you read that right: Mainstream “pro-life” organizations are opposed to contraception as well as abortion. They’re just keeping quiet about it because they know it’s an unpopular position, and they know it outs them as hypocrites who put ideology over human life. But the fact remains that none of the well-known and influential national anti-choice groups have come out in support of contraception access. None of them promote the very thing that has been proven, time and again, to lower the abortion rate.
What do they promote? Abstinence until marriage and embracing pregnancy and childbirth. (Apparently, no married woman has ever wanted an abortion or experienced pregnancy-related complications). Other than that, anti-choice groups offer no real alternative to women who don’t want to be pregnant, or women who don’t have a choice to say no to sex, or women whose pregnancies threaten their life or their health. They offer no solution to the problem that kills nearly 70,000 women every year, other than “don’t have sex outside of marriage; only have sex if you’re willing to give birth; and abortion is wrong, don’t have one.”
That isn’t working. It has never worked.
So far, “pro-life” groups have been non-responsive to the dead bodies in their wake. They are, however, mobilizing around the world to spread policies like Nicaragua’s far and wide. They are actively seeking to outlaw abortion in the United States, and in the meantime trying to limit access to it. Right now they’re in Aurora, Illinois, opposing Planned Parenthood. They’re also the base of a Republican party that regularly launches assaults at children and families. The right-wing opposition to children’s health care is just the start; 100 percent of the country’s worst legislators for children are “pro-life.” The global gag rule, which cuts off U.S. funding to any NGO that so much as mentions the world “abortion,” ends up de-funding health clinics that provide contraception, condoms and HIV prevention. As much as anti-choice leaders claim to value life and dislike abortion, their actions don’t back it up.
Dead sluts would seem to be the price the forced pregnancy lobby is willing to pay for…whatever it is that abortion criminalization is supposed to accomplish. Even “Feminists [sic] For Life [sic]” take no position on contraception other than to express concern “that certain forms of contraception have had adverse health effects on women.” To state the obvious, any position that expresses concern for fetal life while being indifferent to or actively opposing policies meant to reduce unwanted pregnancies is a complete fraud.
If the goal of abortion is to protect fetal life, criminalization is at best an ineffective and grossly inequitable means of achieving this goal, and the bundle of policies favoring reproductive freedom (including legal abortion) generally produces lower abortion rates than the illegal abortion-no rational sex ed-limited access to contraception-threadbare welfare state usually favored by the American forced pregnancy lobby.
It is, of course, true that the fact that countries that criminalize abortion have higher abortion rates doesn’t mean that the criminalization itself causes these high rates, and indeed it’s almost certainly true that ceteris paribus criminalization lowers abortion rates; I didn’t say otherwise. My points, however, are that 1)significant numbers of abortions will be performed under legal regime, since affluent women will almost always have access to safe abortions and some poor women will resort to unsafe illegal abortions, and 2)in practice, all things are almost never equal; abortion criminalization is almost always accompanied by other reactionary policies that swamp whatever inhibiting effects the bans have. What effect abortion criminalization would have in some hypothetical society with a strong commitment to women’s equality that happened to have a de facto commitment to fetal life that is rarely evident when push comes to shove even in societies that ban abortion is pretty much a pointless parlor game. If you want to consider marginal reductions in abortion rates that are reversed by the other policies that almost inevitably come with abortion bans in the real world and are obtained at the price of considerable negative externalities and arbitrary enforcement an “accomplishment,” I guess you can; I don’t.
On the normative point, as long time readers will know I don’t consider increasing abortion rates a moral problem and consider the sexual liberation that comes from legal abortion (and access to contraception) a feature, not a bug. (I do think that lower abortion rates that come from preventing unwanted pregnancies rather than restricting abortion access a good thing; I think that most women would prefer not to become pregnant in the first place than go through the expense and small risk of an abortion even if, like me, you consider pre-viability abortions morally neutral.) I don’t think this means, however, we should ignore the fact that “pro-life” policies are indefensible failures even if you accept “pro-life” premises. It strikes me that these arguments are a lot more likely to convince people who are ambivalent on the issue than making normative arguments about the a priori moral status of abortion.
Our “new” troll
Fred Jones “unhinged liberal” has managed to distill every idiotic argument commonly seen about anti-Roe countermobilization into one comment! Just for fun, let’s go through every fallacy one at a time:
Issues that are decided in this manner do us no good because the decisions are not accepted by the governed. It’s been 34 years and we are still struggling with this. Quality of decision matters.
Roe, has, of course, been accepted by a strong majority of the governed. But more to the point, the idea that the quality of legal reasoning has anything to do with the reaction to Roe is absurd. (Anybody remember the massive Republican outrage about Bush v. Gore, which makes Roe look like a masterpiece of legal reasoning? Must have missed that.) First of all, nobody without a professional obligation reads Supreme Court opinions. And second, Roe if anything, polls better than the underlying position of legal pre-viability abortions, which is the opposite of what one would predict if the poor reasoning of Roe had the slightest relevance to its public reaction. Roe could have been better argued, but the outcome of the case was plausible, and in any case the quality of Blackmun’s opinion is irrelevant to whether or not it will endure.
Now, just think if this decision had involved the governed such as going through a democratic process. Maybe a referendum….maybe a Senate bill. Win or lose, people would accept the decision more as a legitimate one and chances are we wouldn’t be still doing this.
This would be plausible…if you knew nothing about politics or what abortion politics looked like before Roe. Rather than accepting abortion liberalization, the forced pregnancy lobby got the legislatures of New York and Pennsylvania to pass bills re-criminalizing abortion, which had to be vetoed. The idea that abortion would cease to become a salient issue if the courts would just stop protecting reproductive rights at all and turn everything over to Congress and 50 state legislatures is transparently ridiculous. Abortion is a major issue because there’s a major constituency in this country to punish (poor) women who choose to get abortions and get uppity about their proper place in society; what institution resolves the issue is irrelevant. If Roe were overturned, the issue would still be a major part of politics, except that many states would then have abortion bans, contrary to long-standing privacy and gender equality precedents, which would do very little to protect fetal life and a great deal to endanger women’s health.
Also, like it or not judicial review is a part of the American “democratic process.”
What does it say about the pro-abortion people if they don’t trust the people to make the right choice? It says they think they might be in the minority and can’t take the chance.
Actually, for those of us whose knowledge of politics doesn’t come entirely from bad 5th Grade civics textbooks, it means that 1)we understand that American legislatures are not consistently majoritarian in either theory or practice, 2)the de facto exemption affluent women inevitably have from aboriton bans skew legislative outcomes even more strongly towards the forced pregnancy minority, and 3)fundamental individual rights should not subject to unlimited legislative control in any case.
My question: when does a slightly longer version of this comment show up in Slate?
Over at TAPPED, Kate Sheppard beat me to my own hobbyhorse: a new study published in the Lancet about the effects of abortion criminalization. The findings are, to people who know something about the subject, not surprising:
A comprehensive global study of abortion has concluded that abortion rates are similar in countries where it is legal and those where it is not, suggesting that outlawing the procedure does little to deter women seeking it.
This is not to say, however, that criminalizing abortion has no effect:
Moreover, the researchers found that abortion was safe in countries where it was legal, but dangerous in countries where it was outlawed and performed clandestinely. Globally, abortion accounts for 13 percent of women’s deaths during pregnancy and childbirth, and there are 31 abortions for every 100 live births, the study said.
If the goal of abortion is to protect fetal life, criminalization is at best an ineffective and grossly inequitable means of achieving this goal, and the bundle of policies favoring reproductive freedom (including legal abortion) generally produces lower abortion rates than the illegal abortion-no rational sex ed-limited access to contraception-threadbare welfare state usually favored by the American forced pregnancy lobby. If, on the other hand, you’re in it more for the injuring women than for the protection of fetal life, then criminalizing abortion makes good sense.