|
Article Excerpt
FEATURE CONTENTS
INTRODUCTION I. LOCATING CARHART IN CONSTITUTIONAL POLITICS A. The Reach of Antiabortion Legislation: Carhart and Incrementalism B. The Rationale of Antiabortion Legislation: Carhart and Gender Paternalism C. Next Steps: Kennedy and the Court After Carhart II. CONSTITUTIONAL LAW: DIGNITY AND UNDUE BURDEN UNDER CASEY/CARHART A. Three Meanings of Dignity B. Vindicating Dignity Through the Undue Burden Framework C. Dignity Constraints in Casey's Application of the Undue Burden Framework 1. Dignity and the Use of Law To Regulate Informed Consent 2. Dignity Informed by History: The Use of Law To Enforce Family Roles III. DIGNITY AS A CONSTRAINT ON WOMAN-PROTECTIVE JUSTIFICATIONS FOR ABORTION RESTRICTIONS A. Woman-Protective Discourse and Counter-Signals in Carhart B. Ascriptive Autonomy and Dependence: Gender Paternalism Old and New C. Claims on Which Woman-Protective Justifications for Abortion Restrictions Rest CONCLUSION
INTRODUCTION
It is commonly assumed that restrictions on abortion protect the unborn--but the Court's recent decision in Gonzales v. Carhart (1) introduces the possibility that a ban on methods of performing certain later abortions might protect women as well. This essay examines the social movement roots of the woman-protective antiabortion argument that appears in Carhart, and identifies constitutional limits on woman-protective abortion restrictions in the commitment to dignity that structures Carhart and Planned Parenthood v. Casey, (2) the case on which Carhart centrally relies.
Appeals to dignity recur in our case law and politics. Carhart appeals to human dignity as a reason to allow government to restrict abortion, (3) while Casey appeals to human dignity as a reason to prohibit government from interfering with a woman's decision whether to become a parent. (4) As I show, in substantive due process and equal protection cases constitutional protections for dignity vindicate, often concurrently, the value of life, the value of liberty, and the value of equality. (5) Attending to the usage of dignity in Casey and Carhart, we can see that a commitment to dignity structures the undue burden test itself, (6) which allows government to regulate abortion to demonstrate respect for the dignity of human life so long as such regulation also demonstrates respect for the dignity of women. (7)
This dignity-based reading of Casey and Carhart is responsive to the language of the cases, the constitutional principles on which they draw, and the social movement conflict out of which the cases have emerged. It supplies a framework for analyzing new, woman-protective justifications for regulating abortion discussed in Carhart, (8) which have been invoked to justify bans and informed consent restrictions in South Dakota and other states. (9) Ultimately, this dignity-based analysis identifies constitutional limitations on woman-protective antiabortion argument that emanate from the Constitution's due process and equal protection guarantees and the social norms and commitments they reflect. Exploring the roots, logic, and limits of the woman-protective antiabortion argument glimpsed in Carhart provides an occasion to appreciate how our Constitution enables community in conflict.
On its face, Carhart seems to be a case about protecting the unborn, not women. In upholding the federal Partial-Birth Abortion Ban Act (10) under Casey, (11) the Court emphasized congressional findings that the banned method had "disturbing similarity to the killing of a newborn infant" (12) and reasoned that the ban "expresses respect for the dignity of human life" (13) and would be useful in stimulating the moral education of the community. (14) But the Court also discussed an additional woman-protective justification for the ban that congressional findings never mention. (15) Carhart cites an amicus brief with affidavits suggesting that women need protection from making uninformed abortion decisions they might regret, observing:
While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. See Brief for Sandra Cano et al. as Amici Curiae in No. 05-380, pp. 22-24. Severe depression and loss of esteem can follow. (16)
The significance of these observations is unclear. Carhart notes in passing that "[t]he State has an interest in ensuring so grave a choice is well informed," (17) yet the opinion shows no interest in how decisions about the banned procedure are actually made, discussing women as a "body" that is part of the Act's "anatomical landmarks" (18) rather than as a deliberative agent, and never mentioning the health reasons that would lead women or their doctors to elect the banned abortion method, or the consultative process through which such a decision is ordinarily reached. (19)
What are we to make of the Court's raising woman-protective considerations that Congress did not consider in enacting the Partial-Birth Abortion Ban Act? Why did the Court discuss deliberative errors in women's decision making about whether to carry a pregnancy to term in a case concerning restrictions on the procedures doctors use to perform abortion? Paradoxically, Carhart's abortion-regret discussion seems so out of place that it invites attention.
Gender-paternalist reasoning in Carhart is no accident. The passage reflects the spread of abortion restrictions that are woman-protective, as well as fetal-protective, in form and justification. The abortion ban South Dakota voters defeated in 2006 and the ban the state's voters will consider again this fall have been justified as protecting women, (20) as has South Dakota's "informed consent" statute that directs doctors to tell women not only that an abortion "will terminate the life of a whole, separate, unique, living human being," but also to describe the mental and physical health risks of abortion, including depression, suicide ideation, and sterility. (21) The informed consent statute and the past and proposed ban all rely on a state task force report that gave great weight to the abortion-regret affidavits contained in the amicus brief Justice Kennedy cited in Carhart. (22) For these reasons, the antiabortion movement reads Carhart as support for much more than the partial-birth abortion ban strategy. Leslee Unruh, who led South Dakota's 2006 effort to ban abortion on the grounds it would protect women, (23) greeted Carhart with delight: "I'm ecstatic.... It's like someone gave me $1 million and told me, 'Leslee, go shopping.' That's how I feel." (24) Carhart encouraged Unruh and the backers of South Dakota's 2006 ban to gather the signatures needed for a new abortion ban referendum that the state's voters will consider this fall. (25)
Carhart may have encouraged the current South Dakota abortion ban initiative, but reading Carhart in isolation is not sufficient to determine the proposed ban's constitutionality. Justice Kennedy wrote Carhart in revulsion at the "partial birth" procedure Congress banned and in estrangement from the understanding of Casey expressed in the Stenberg case. (26) But in writing Carhart, Justice Kennedy applies the Casey framework he helped author. Justice Kennedy's next steps cannot be adduced from Carhart alone--as even antiabortion advocates debating the wisdom of a South Dakota ban realize. (27) Absent dramatic new developments, the constitutionality of a ban based on gender-paternalist justifications for restricting abortion would be determined in a doctrinal framework that protects women's autonomy to decide whether to bear a child. As this line of inquiry makes clear, the gender-paternalist justification for restricting abortion is in deep tension with the forms of decisional autonomy Case), protects.
After Carhart, what principles govern restrictions on abortion, whether to protect women or the unborn? Attending to the ways Casey and Carhart reason about dignity illuminates core concerns and commitments of the case law. While Carhart invokes dignity as a reason for regulating abortion, (28) Casey invokes dignity as a reason for protecting women's abortion decisions from government regulation. (29) The normative valence of dignity varies in Case), Carhart, and other Fourteenth Amendment decisions that Justice Kennedy has written for the Court or on his own behalf. At different points in these decisions, dignity concerns the value of life, the value of liberty, and the value of equality. Once we attend to these differences in usage, we can see how a commitment to dignity structures the undue burden test itself, which allows government to regulate abortion to demonstrate respect for the dignity of human life so long as such regulation also demonstrates respect for the dignity of women. (30)
This essay's focus on the different meanings of "dignity" in the opinions of Justice Kennedy responds, of course, to his pivotal role in writing Casey and Carhart and his likely influence in charting the Court's abortion jurisprudence in the years ahead. Yet the analysis offered here is not predictive. While the essay begins in the positive register in an effort to understand how the abortion debate is shifting, it moves to the normative register, as it asks: what principled guidance does the commitment to dignity expressed in Casey, Carhart, and other Fourteenth Amendment decisions provide in determining how government may regulate abortion? Given the many twists and turns of abortion politics and the myriad pressures on the Court however composed, an exercise in prediction would not provide substantial guidance, and in all events would require a different set of analytical resources than this essay brings to bear on the question.
Why focus on the ways Justice Kennedy reasons about dignity in opinions written for the Court and on his own behalf? The abortion cases express their core precepts in the language of dignity. Dignity is a value that bridges communities. It is a value to which opponents and proponents of the abortion right are committed, in politics and in law. It is a value that connects cases concerning abortion to other bodies of constitutional law, and connects decisions concerned with liberty to decisions concerned with equality. It is a value that guides interpretation of other national constitutions and of human rights law. (31)
Dignity can do all this good work because it is a compelling and multifaceted concept. It is no doubt for these reasons that dignity figures so frequently and consequentially in the decisions of a Justice who is now playing a leading role in the development of American constitutional law. Examining the complex commitment to dignity shaping these decisions is not, by itself, sufficient for predictive or comparative analysis. But because dignity-based analysis of Casey and Carhart is informed by the constitutional understanding of the Justice who is in dialogue with competing communities in the abortion debate, it supplies a principled basis for reasoning about the question facing the Court and the nation that is concerned with bridging this normative divide. Positive and normative analysis of contending claims on human dignity in the abortion debate offers a glimpse of how our Constitution enables community as it structures conflict.
Part I begins by locating constitutional law in constitutional politics, considering the social movement struggles that led to Carhart and are shaping the next generation of abortion restrictions that courts will confront. Carhart grew out of debates in the antiabortion movement over the reach and rationale of laws designed to challenge Roe. Should the movement attack abortion through absolute or incremental restrictions, for example, through categorical bans or through procedural obstacles depicted as "informed consent" regulations? Should the movement justify such restrictions as protecting the unborn or women? Examining tactical and moral debates over the reach and rationale of laws designed to challenge Roe illuminates important aspects of the Carhart opinion and the next round of test cases designed to probe its meaning.
As importantly, this examination of constitutional politics shows how the shape and justification of abortion restrictions has evolved with struggle over Roe. Over the years, in an effort to persuade decision makers who support Roe, Roe's adversaries have begun to draw on the values the abortion right vindicates in order to attack Roe. Antiabortion strategists have fused talk of post-abortion harms, which originated at movement crisis pregnancy centers, with public health and feminist discourse. Those who would ban abortion now assert that restrictions on abortion protect women's health and freedom and promote their "informed consent." The strategy is designed to erode the protections for women's decisions set forth in Roe and Casey, and the passing discussion of postabortion regret in Carhart suggests it may yet succeed.
For what reasons may the government regulate abortion? Are there constitutional limits on woman-protective antiabortion argument that are not expressed in Carhart? Part II of the essay analyzes this question of constitutional law by examining the commitment to dignity in Carhart, Casey, and other of Justice Kennedy's Fourteenth Amendment opinions. In upholding the Partial-Birth Abortion Ban Act, Carhart emphasized the importance of protecting human dignity, the value of every life that inheres in its being alive. (32) Yet this is not the only form of dignity the Constitution protects. Justice Kennedy's opinion in Casey, as well as his opinions in substantive due process cases such as Lawrence v. Texas (33) and equal protection decisions such as Parents Involved (34) and J.E.B. v. Alabama ex. rel. T.B., (35) express a commitment to dignity of other kinds. There, Justice Kennedy speaks passionately of the dignity of autonomous decisionmaking, insisting that the Constitution guarantees an individual freedom to choose her own life course and not to live as the instrument of another's will. Justice Kennedy is eloquent also in describing the protections against subordination that human dignity requires, declaring the Constitution guarantees persons freedom from the denigration and humiliation of treatment as second-class citizens. (36)
Once we attend to the multiple forms of dignity that the Constitution protects, we can understand the undue burden framework as both vindicating and reconciling commitments to several forms of dignity. Casey offers a differently inflected account of the interest in potential life, an account that focuses on the government's interest in regulating abortion to express respect for life, a regulatory interest which Casey holds can be reconciled with dignity-respecting protection of a woman's right to choose. Casey allows regulation of abortion that demonstrates respect for human life, but only insofar as such regulation does not impose an undue burden on a woman's right to decide whether to bear a child. (37) The undue burden framework gives doctrinal expression to the principle that government may regulate abortion to express respect for the dignity of human life so long as it does so by means that express respect for the dignity of women's lives. (38)
Part II concludes its analysis of the undue burden framework by exploring dignity-constraints on the regulation of abortion that are found in the joint opinion's application of the undue burden test to "informed consent" messages designed to persuade women to carry a pregnancy to term and to a requirement that a woman notify her husband before she could obtain an abortion. This analysis shows that dignity-respecting regulation of women's decisions can neither manipulate nor coerce women: the intervention must leave women in substantial control of their decision, and free to act on it. Judgments about dignity are contextual and based on social meaning, especially where dignity implicates questions of equal respect. In reaffirming the abortion right and then holding that a requirement of spousal notice is an undue burden on the abortion decision, the Supreme Court makes plain that constitutional protections for the abortion right protect women from government pressure to conform to customary sex roles. Casey protects women's dignity on the understanding that there is a history of using law to coerce sex-role conformity that the abortion right renounces.
Part III of the essay applies a dignity-based analysis of the undue burden framework to woman-protective justifications for restricting abortion. Carhart signals receptivity to such arguments, but as the essay shows, the discussion in Carhart is just that: signaling of a kind that expresses receptivity to the claims for restricting the method of performing abortions that Congress banned, but that does not recognize protecting women as an independent basis for restricting women's decisions about whether to continue a pregnancy. The essay thus considers the constitutional status of woman-protective justifications for regulating abortion.
Woman-protective justifications for restricting abortion--such as those contained in the South Dakota Task Force Report on Abortion--point to a variety of disputed facts about women's welfare and choices as a basis for restricting abortion. The core problem arises when government invokes these narratives about women as legal justifications for imposing controls on women. When woman-protective antiabortion arguments present descriptive accounts of confusion or coercion in some women's decisions about abortion as a reason for regulating all women as persons whose life decisions need to be made by the state, they violate the premise that Roe, Casey, and the modern equal protection cases share: that women are able and entitled to decide their own life course, especially in matters concerning family roles. Gender paternalism of this kind denies women the very forms of dignity that Casey and the modern equal protection cases protect.
The problem with woman-protective antiabortion argument is not simply that it would treat individual women on the basis of generalizations about the group, or the stereotypes about women's capacity and women's roles on which the argument rests. These stereotypes obscure the profound mismatch between the injuries that the woman-protective antiabortion argument identifies and the sole remedy it proposes. Like old forms of gender paternalism, the new forms of gender paternalism remedy harm to women through the control of women. Abortion restrictions do not provide women in need what they need: abortion restrictions do not alleviate the social conditions that contribute to unwanted pregnancies, nor do they provide social resources to help women who choose to end pregnancies they otherwise might bring to term. A Conclusion reflects on alternative--and constitutional--modes of protecting women who are making decisions about motherhood.
I. LOCATING CARHART IN CONSTITUTIONAL POLITICS
The Carhart decision emerged from the efforts of an antiabortion movement frustrated by its inability to overturn Roe. Indeed, the opinion can be understood as the fruit of debates within the antiabortion movement over the best way to achieve this aim. One debate within the movement concerns the reach of antiabortion legislation: many believe it is crucial to oppose Roe as one approaches evil, categorically and without compromise, while others believe that the most effective way to reverse Roe is to oppose the decision incrementally, in a manner that allows for the reeducation of public opinion. Another debate within the movement concerns the rationale for antiabortion legislation. Many opponents of Roe oppose abortion in the interest of protecting unborn life only, while growing numbers within the movement argue for restricting abortion in order to protect women from abortion.
Situating the Partial-Birth Abortion Ban Act within the context of these intramovement debates helps illuminate the logic of the Carhart opinion as upholding incrementalist regulation enacted for fetal-protective purposes and subsequently defended on woman-protective grounds. It identifies some of the other incrementalist regulation that advocates will be employing to test the limits of constitutional protection for the abortion right, and shows how the leadership in the antiabortion movement has come to embrace the woman-protective argument as a new strategy for eviscerating the abortion right.
For decades, the antiabortion movement opposed protecting women's right to choose because Roe's opponents judged protecting the unborn of greater importance than protecting the autonomy and equality values that Roe's supporters believe the abortion right vindicates. Yet something important happened during those decades of arguing with decision makers who support the abortion right: advocates of incremental and absolute abortion restrictions have increasingly come to justify such regulation in the frames of their opponents, and now often portray abortion restrictions as promoting women's informed consent, women's health, women's welfare, and women's freedom. Attending to these rhetorical transformations in antiabortion advocacy illuminates interpretive problems that courts will encounter as judges try to enforce bodies of constitutional law that guarantee women's autonomy and equality.
A. The Reach of Antiabortion Legislation: Carhart and Incrementalism
The Partial-Birth Abortion Ban Act may regulate a medical procedure, but its roots lie in constitutional politics, not the practice of medicine. "The term 'partial-birth abortion' was invented for purposes of writing legislation," Cynthia Gorney reports. "There is no textbook reference to any operative procedure or medical state called 'partial birth.'" (39) Antiabortion advocates were prominently involved in developing and drafting the legislation. Their object was to focus legislation and litigation on visceral details of one infrequently employed second-trimester procedure, with the aim of stimulating opposition to abortion generally. (40) "I mean, abortion advocates never want to talk about what's happening in an abortion," one legislative liaison observed. "They generally don't even want to say the word 'abortion.' And another goal--this is just another point that I wanted to see happen-was to get this bill before the Supreme Court." (41) The National Right to Life Committee's legislative director Douglas Johnson acknowledged that the ban on certain methods of performing later abortions was more effective for the message it sent than the lives it saved: "We would hope that, as the public learns what a 'partial birth abortion' is, they might also learn something about other abortion methods and that this would foster a growing opposition to abortion." (42)
In this respect, the Partial-Birth Abortion Ban Act was of a piece with prevailing antiabortion strategy. Initially, the movement sought to overturn Roe with a Human Life Amendment but was unable to muster the support needed to amend the Constitution. (43) With frustration mounting throughout the 1980s, one wing of the movement turned to clinic violence. Another began to develop strategies to reverse Roe incrementally, through legislation and litigation that would erode support for abortion one step at a time. (44) The evangelical journal Christianity Today was quick to celebrate the Court's decision in Carhart as proof that the incrementalist strategy works, (45) linking Carhart to other "popular measures--parental notification and informed consent, for example--that shape public opinion and chip away at the decision." (46)
Abortion restrictions that educate public opinion and are upheld in decisions that incrementally narrow the abortion right are the subject of passionate dispute within the antiabortion movement, (47) criticized by those who would advocate bans instead. Observes incrementalist Jill Stanek, "Purists believe supporting legislation with compromises or exceptions is supporting abortions of babies not covered by that legislation. Purists also oppose parental notification/consent laws, abortion informed consent laws, fetal pain laws and abortion clinic regulations, because they say those condone abortion, too." (48) As Stanek sees it, "incrementalists and purists share the same goal: to make abortion illegal except to save the life of the mother, as was the law in every state before 1967. The ultimate goal of every incrementalist I know is a constitutional human life amendment." (49) Incrementalists understand the dispute as purely strategic, a difference in how to achieve a shared goal. But their critics within the antiabortion movement charge that incrementalism is ineffective and unethical (50) (even the devil's work (51))--a charge that Americans United for Life and other incrementalists take great pains to refute. (52)
Celebration of the Carhart decision within the antiabortion movement as vindicating the incrementalist strategy brought tensions between the two wings of the movement to a boil. "The Supreme Court's Partial-Birth Abortion Ban decision angered purists on two fronts," Stanek observes. "They thought the ban was meaningless, even counterproductive. And they thought the joy incrementalist groups expressed demonstrated malfeasance." (53) Refusing to celebrate Carhart as a victory for the movement, Brian Rohrbough, president of Colorado Right to Life, denounced the strategy for what it had failed to produce. As he saw the bottom line: "We've been promised for almost 40 years that the strategy of electing Republicans would get us a Republican Supreme Court that would end abortion, and that has not happened." (54) Rohrbough published an open letter to James Dobson of Focus on the Family attacking Dobson for celebrating Carhart:
Focus on the Family and many ministries celebrate this wicked ruling to justify the fifteen years of wasted effort. Pro-lifers gave tens of millions of dollars to the movement responding to countless fundraising pleas that mention the PBA ban. A major pro-life fundraising firm told Colorado Right To Life's V.P. Leslie Hanks, "The PBA script gets the best results." Please stop foisting onto the church the falsehood that this gruesome ruling will "protect children." This decision, to use your word, is more "Naziesque" than the PBA it regulates. Beyond the children, your praise helps destroy the souls of these wicked Justices who no doubt take comfort in the approval of Christian leaders. You help them feel safe as they violate God's enduring command, Do not murder; and then with hubris, they demand that abortionists follow their new regulation of how to murder a child.... For more than a quarter century, the pro-life movement with your support, has adopted moral relativism and legal positivism, obsessing on process and overlooking fundamental justice.... Gonzales v. Carhart unequivocally affirms the "killing" of children as long as you follow its guidelines, and the pro-life movement cheers, for the ends now justify the means, and right and wrong have become negotiable. (55)
Rohrbough's letter led the National Right to Life Committee to repudiate its Colorado chapter. (56) The episode was the latest installment in a long running dispute between incrementalists and absolutists. In South Dakota only the year before, it was the absolutists who enacted an abortion ban that had an exception only to save a woman's life (and not even for abortions necessary to protect a woman's health or for pregnancies resulting from rape or incest); then it was the incrementalists who rose in objection. In 2004 and again in 2006, the National Right to Life Committee and Americans United for Life worked to block abortion bans in the state, worried that a ban would alienate moderate Americans and provoke judicial reprisal. (57)
This spring, those impatient to ban abortion have once again seized the initiative in South Dakota and gathered signatures to put a ban on the ballot, ignoring the warnings of incrementalists opposed to sending a ban to the Court in Carhart's wake. (58) Incrementalists set forth their very different vision of how the movement should proceed at a conference held just after Carhart:
Laws requiring women to be told in more detail how fetuses die in abortions. State-funded public-health campaigns warning women that abortions could cause psychological trauma. And requirements that abortion doctors report detailed demographic and medical information about their patients to the state.... [P]erhaps including a drive for state bans on other mid- and late-term abortion methods. (59)
B. The Rationale of Antiabortion Legislation: Carhart and Gender Paternalism
To this point, this essay has located Carhart in a debate over the reach of antiabortion legislation that pits absolutists seeking categorical prohibitions on abortion against incrementalists seeking to enact laws that would lead to such a regime one step at a time. Carhart is incrementalism triumphant. But the gender paternalism of the Carhart opinion emanates from a different strategy debate within the antiabortion movement, concerning the rationale for abortion regulation rather than its reach.
Without a doubt, the dominant argument of the antiabortion movement over the last several decades has been that abortion wrongfully ends the life of the unborn. Argument over the morality of abortion focused on the ontological status of the embryo/fetus (Is it a person?), the justifiability of the practice (Is it murder?), and ultimately, the justifiability of efforts to stop the practice (Is it morally permissible to take a life to save a life?). (60)
But if this fetal-focused and increasingly confrontational line of argument was the dominant voice of the antiabortion movement in the several decades after Roe, it was not the only voice of the antiabortion movement. There was another voice within the movement, especially at the movement's growing network of "crisis pregnancy centers," where women sought to dissuade pregnant women from having abortions. Here argument against abortion tended to speak to the needs and interests of women as well as the unborn, and to assume a less confrontational form. (61) In the 1980s, Vincent Rue claimed that abortion produced trauma symptoms that he dubbed "post-abortion syndrome" (PAS), and Dinesh D'Souza urged Surgeon General Koop to find that abortion harmed women--an appeal that Koop, a passionate opponent of abortion, declined on the ground the scientific evidence was lacking, and the moral emphasis wrong. (62) "The pro-life movement had always focused--rightly, I thought-on the impact of abortion on the fetus," Koop reasoned. "They lost their bearings when they approached the issue on the grounds of the health effect on the mother." (63)
With Koop's refusal to find a scientific basis for claims of abortion's harm, woman-focused antiabortion advocacy might have remained embedded in the movement's crisis pregnancy centers. But by the early 1990s, leadership of the antiabortion movement was reeling from several major setbacks. As Republican administrations committed to overturning Roe appointed Justices to the Court, Roe's defenders mobilized with increasing urgency, helping to block the nomination of Robert Bork in 1987 and to elect Bill Clinton in 1992. (64) In 1992 Republican-nominated justices helped reaffirm the abortion right in Case). Violence at the clinics had estranged the American electorate. (65)
In this period, the leadership of the antiabortion movement began to look for new ways of speaking to the American public. (66) They came to appreciate that talk of abortion's harms, which had expressive and mobilizing purposes in the movement's crisis pregnancy centers, might be addressed to a new audience, for new, strategic ends. (67) In the early 1990s, movement leadership began to experiment with using talk of post-abortion harms, not simply to deter pregnant women from choosing abortion or to recruit them to the movement's ranks, but also to persuade Americans outside the ranks of the antiabortion movement that government should impose legal restrictions on women seeking an abortion.
In this era of repeated setbacks, the antiabortion movement found itself unable to persuade a significant portion of the electorate that was responsive to women's rights claims. Growing numbers of movement leaders came to appreciate that woman-focused antiabortion discourse might have strategic utility in persuading segments of the electorate the movement had heretofore been unable to reach: it might reassure those who hesitated to prohibit abortion because they were concerned about women's welfare that legal restrictions on abortion might instead be in women's interest. And so in the early 1990s, leaders of the antiabortion movement began to use PAS for new purposes and for a new audience.
In the process they transformed PAS, a therapeutic or counseling discourse employed at the movement's crisis pregnancy centers to dissuade women from having abortions, into woman-protective antiabortion argument (WPAA), a political discourse that taps longstanding traditions of gender paternalism and is designed to persuade voters who ambivalently support abortion rights that they can help women by using law to restrict women's access to abortion. As a political discourse designed to counter feminist, prochoice claims, WPAA came to internalize elements of the arguments it sought to refute (68)-fusing the public health, trauma, and survivors idiom of PAS with language of the late twentieth-century feminist and abortion rights movements. (69)
We can see this decision to supplement fetal-focused arguments with appeals to woman-protective justifications for restricting abortion in the career of Jack Willke, head of the National Right to Life Committee. Willke pioneered fetal-focused arguments in the 1970s (70) and honed this mode of advocacy throughout the 1980s, but embraced WPAA in the early 1990s after opinion polling persuaded him that advancing claims about women's rights and welfare would help him persuade the uncommitted ambivalent middle.
Here is Willke, writing in 2001, recalling his conversion: We had been making steady progress ... [in] educating the nation, beyond reasonable doubt, that human life, in its complete form, began at the first cell stage.... Then pro-abortion activists ... changed the question. No longer was our nation arguing about killing babies. The focus, through their efforts, had shifted off the humanity of the unborn child to one of women's rights. They developed the effective phrase of "Who Decides?" Pro-lifers were still teaching in the traditional method that they had brought such astounding and continuing success until that time. They were still proving that this was a baby and telling how abortion killed the baby. However, increasingly, these facts fell on deaf ears, for this did not address the new argument of women's rights. This had to be answered, but we did not know what the effective answer was. The only way to find out would be by extensive market research. That's how they had come up with the idea of changing the question to "Who decides ?" That was how we would discover how to countermand their new sales pitch. This would require extensive research, focus groups, polling and the testing of new ideas. ... We did the market research and came up with some surprising findings.... [The public] felt that pro-life people were not compassionate to women and that we were only "fetus lovers" who abandoned the mother after the birth. They felt that we were violent, that we burned down clinics and shot abortionists. We were viewed as religious zealots who were not too well educated. Clearly, their image of us was one that had been fabricated and delivered to them in the print and broadcast media by a liberal press. After considerable research, we found out that the answer to their "choice" argument was a relatively simple straightforward one. We had to convince the public that we were compassionate to women. Accordingly, we test marketed variations of this theme. Thus was born the slogan "Love Them Both," and, in fact, the third edition of our Question and Answer book has been so titled, specifically for that reason. (71)
During this same period, David Reardon, a key proponent of woman-protective argument whose research is regularly cited by the antiabortion movement (72) and who has played a prominent role in promoting abortion restrictions in South Dakota and Missouri, (73) set out the main tenets of the emerging political strategy in a 1993 article entitled Pro-Woman/Pro-Life Campaign Initiative (74) and a 1994 article entitled Politically Correct vs. Politically Smart: Why Politicians Should be Both Pro-Woman and Pro-Life, (75) subsequently published as his 1996 book Making Abortion Rare (76) (an antiabortion retort to Clinton's promise to make abortion "safe, legal and rare" (77)) :
The abortion debate is about women's rights versus the rights of the unborn. Right? Wrong. That is the way the pro-abortionists and media have framed the debate. They have consciously defined this issue in terms which polarize the public and paralyze the middle majority--the "fence sitting" fifty percent or more who feel torn between both the woman and the child--into remaining neutral. ... [W]e must insist that the proper frame for the abortion issue is not women's rights versus the unborn's rights, but rather women's and children's rights versus the schemes of exploiters and the profits of the abortion industry. (78)
In a section of the article entitled To Love a Child, First Love the Mother, Reardon squarely addressed the reservations of advocates who opposed abortion out of concern for the unborn:
While committed pro-lifers may be more comfortable with traditional "defend the baby" arguments, we must recognize that many in our society are too morally immature to understand this argument. They must be led to it. And the best way to lead them to it is by first helping them to see that abortion does not help women, but only makes their lives worse. (79)
A "committed pro-lifer" might understand the moral wrong of abortion as a wrong to the child, but others, less enlightened, needed to be "led" to this understanding, and would, if they were first led to believe abortion was a harm to women.
Where Willke discussed abortion's harm to women in the language of Christian love, Reardon discussed abortion's harm to women in the language of public health. Since the 1980s, Reardon had conducted numerous studies claiming to document post-abortion syndrome--studies that have subsequently been cited in movement documents such as the Report of the South Dakota Task Force on Abortion, (80) even as psychologists, psychiatrists, and government oncologists extensively criticize the findings. (81) In Making
Abortion Rare, Reardon is quite clear that empirical research on the psychological consequences of abortion is a useful way of talking about the moral evil of abortion in terms that have authority for audiences not moved by direct appeals to divine authority:
Christians rightly anticipate ... that any advantage gained through violation of the moral law is always temporary; it will invariably be supplanted by alienation and suffering.... Thus, if our faith is true, we would expect to find compelling evidence which demonstrates that such acts as abortion, fornication, and pornography lead, in the end, not to happiness and freedom, but to sorrow and enslavement. By finding this evidence and sharing it with others, we bear witness to the protective good of God's law in a way which even unbelievers must respect. (82)
But social science evidence is contestable, and Reardon does not urge advocates to rely on it alone. His 1990s articles also urge politicians to argue from a simple claim of sex-role morality that is in turn based in religious conviction. A pregnant woman is a mother, and a mother's interests are defined by the needs of her child, Reardon argued:
Pro-life leaders who are nervous about focusing more attention on the woman for fear that it will distract attention away from the unborn, should meditate on the following truism: One cannot help a child without helping the mother; one cannot hurt a child without hurting the mother. This intimate connection between a mother and her children is part of our created order. Therefore, protecting the unborn is a natural byproduct of protecting mothers. This is necessarily true. After all, in God's ordering of creation, it is only the mother who can nurture her unborn child. All the rest of us can do is to nurture the mother. This, then, must be the centerpiece of our pro-woman/pro-life agenda. The best interests of the child and the mother are always joined--even if the mother does not initially realize it, and even if she needs a tremendous amount of love and help to see it. We can best help each by helping both. If we hurt either, we hurt both. The goal of our pro-woman/pro-life agenda is to lead our nation to an understanding of this reality. (83)
Of course to make this claim about women's interest persuasive, Reardon needed some explanation for the large numbers of women seeking abortions. How would using the criminal law to control women help women? Reardon's response was to insist that women who have abortions do not in fact want them; they are coerced into the procedure or do not grasp its implications. In his 1993 article, Pro-Woman/Prolife Initiative, Reardon explained:
It is our belief that most politicians don't know how to handle the abortion issue to their best advantage. Candidates must learn to project themselves as both pro-woman and pro-life. This is done by emphasizing one's knowledge of the dangers of abortion and the threat of women being coerced into unwanted abortions by others. We have a program to train individuals, including politicians and lobbyists, on how to debate the abortion issue from the pro-woman perspective. This program includes detailed evidence which shows that many women are being coerced or manipulated into unwanted abortions. Effective measures to protect women from unwanted abortions, and to increase clinic liability for dangerous and unwanted abortions are fully detailed. This approach breaks down the myth that pro-lifers care only about the unborn while "pro-choicers" care about women. (84)
In the following year's article, Politically Correct vs. Politically Smart: Why Politicians Should be Both Pro-Woman and Pro-Life, Reardon emphasized that claims of coercion and informed consent were at the heart of the pro-woman argument. "Reframing the abortion debate in this way is not difficult. But it does require pro-life candidates to become familiar with new facts, arguments, and media 'sound bites,'" (85) he argued. Key among them was that women are "being coerced into unwanted abortions" and need legislation "guaranteeing the right of women to make free and fully informed decisions about abortion." (86) The law of tort now supplied a language to allege abortions were wrongfully imposed on women. (Reardon emphasized the political value of incorporating informed consent talk into antiabortion argument at a time when he had just completed a casebook advising tort lawyers how to sue abortion providers (87) and an amicus brief emphasizing informed consent themes in constitutional litigation under Roe. (88))
The antiabortion movement was now positioned not only to answer the claims of the women's movement that so troubled Willke, but to appropriate feminism's political authority and express antiabortion argument in the language of women's rights and freedom of choice. In Making Abortion Rare, Reardon urged antiabortion politicians to "take back the terms 'freedom of choice' and 'reproductive freedom'" and "emphasize the fact that we are the ones who are really defending the right of women to make an informed choice; we are the ones who are defending the freedom of women to reproduce without fear of being coerced into unwanted abortions." (89) Woman-protective antiabortion argument fused therapeutic and public health talk of a postabortion syndrome with talk of choice and informed consent drawn from feminism, constitutional law, and medical malpractice law. (90) Today, Reardon is advancing woman-protective antiabortion claims of harm and coercion through a website disseminating ads that call abortion the "Unchoice" and that assert sixty-four percent of abortions are coerced, (91) as well as through a petition campaign for a tort statute in Missouri emphasizing the same message. (92)
This story of women's decisionmaking as coerced or confused is a standard and seemingly central part of contemporary woman-protective arguments for abortion restrictions--whether absolutist or incremental in form. The claim is not only that women will be harmed by abortion but that they have been pushed into abortions they do not want and misled into abortions they will regret. (93)
When Harold Cassidy, one-time lawyer for Mary Beth Whitehead in the Baby M surrogacy case (94) and an architect of South Dakota's recent ban and "informed consent" laws, joined Allan Parker of the Justice Foundation to represent Norma McCorvey and Sandra Cano, the original plaintiffs in Roe and Doe, in an effort to reopen their cases, the evidence Cassidy and Parker submitted in support of the litigation was 1,000 affidavits demonstrating that abortion harms women--the same Operation Outcry affidavits that South Dakota later relied upon in enacting its 2006 abortion ban and that Justice Kennedy cited in Carhart in 2007. (95) Litigation documents from the suit to reopen Roe and Doe express Cassidy and Parker's belief that the affidavits would present the Court with a new understanding of women's decisional capacity in matters concerning abortion. (96)
Cassidy, who played a central role in introducing woman-protective arguments into South Dakota via a 2004 abortion ban bill (97) (which the incrementalist National Right to Life Committee played a role in blocking (98)) and then in crafting South Dakota's abortion "informed consent" laws, has made quite clear his doubt that women have the capacity to make "a rational, informed decision" about ending a pregnancy. (99) These views are now official state policy in South Dakota: they dominate South Dakota's 2005 Task Force Report on abortion, which served as a justification for a draconian "informed consent" law enacted that same year, a ban on abortions in the state enacted the following year and then repealed by referendum, (100) as well as the presently proposed ban, which will appear in the ballot in the fall of 2008. (101) The seventy-page task force report found that women in the state had not in fact chosen to have abortions; rather they were misled or coerced into having abortions. For these claims, the task force relied on the Operation Outcry affidavits Cassidy and Parker gathered in their bid to reopen Roe. (102) The South Dakota Task Force asserted it received the testimony of 1950 women, reporting that "[v]irtually all of them stated they thought their abortions were uninformed or coerced or both." (103) The Report asserted that women who have abortions could not have knowingly and willingly chosen the procedure and must have been misled or pressured into the decision by a partner, a parent, or even the clinic-because "[i]t is so far outside the normal conduct of a mother to implicate herself in the killing of her own child." (104) The Report asserted that a woman who is encouraged "to defy her very nature as a mother to protect her child," (105) is likely to "suffer[] significant psychological trauma and distress." (106) It thus recommended that the state ban abortion to protect "the pregnant mother's natural intrinsic right to her relationship with her child, and the child's intrinsic right to life." (107)
Of course, the South Dakota legislature is not the only governmental body the Operation Outcry affidavits have influenced. The affidavits have now played a role in the Supreme Court. In Carhart, Justice Kennedy wrote:
While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. See Brief for Sandra Cano et al. as Amici Curiae in No. 05-380, pp. 22-24. Severe depression and loss of esteem can follow. (108)
Justice Kennedy's opinion for the Court took judicial notice of the fact that some women come to regret their decision to abort a pregnancy, illustrating this point by reference to an amicus brief containing the Operation Outcry affidavits, (109) even as it ignored another amicus brief featuring the stories of women who actually elected second-trimester abortions. (110) Given that the Partial-Birth Abortion Ban Act is classic incremental and fetal-protective legislation--Congress and the lower courts never considered defects in women's deliberative process as a reason for its enactment (111)--the discussion of regret and the selective reference to women's stories is notable. Notwithstanding the Court's concession that "we find no reliable data to measure the phenomenon," (112) does Carhart's discussion of regret and reference to the Operation Outcry affidavits indicate the Court is preparing to recognize a new constitutional justification for restricting women's access to abortion?
C. Next Steps:...
|
