Abortion Around Roe

By ALICE BUTTRICK

April 14, 2010

Last Tues­day at the Law School, Pro­fes­sor Reva Siegel and famed legal jour­nal­ist Linda Green­house pre­sented on their lat­est col­lab­o­ra­tion, a col­lected his­tory of pre-Roe pol­i­tics and mate­ri­als. Address­ing the two major pop­u­lar nar­ra­tives sur­round­ing the Roe decision—depicted as a total legal bomb­shell on the one hand, or as the cul­mi­na­tion of sweep­ing reforms on the other—their project looks mainly at the decade lead­ing up to the Roe deci­sion and finds both nar­ra­tives to be ‘hys­ter­i­cally false.’ Instead, this book, a work of his­tor­i­cal record rather than advo­cacy although both authors are adamantly pro-choice, shows a pic­ture of a nation in con­ver­sa­tion. Green­house her­self remem­bered writ­ing about the debate in 1970, still unsure of what was at stake.

Siegel and Green­house drew atten­tion to some of the key fal­lac­ies sur­round­ing the deci­sion both in their intro­duc­tion and dur­ing a slightly pointed ques­tion and answer ses­sion (the event, jointly spon­sored by Yale Law Stu­dents for Choice and Yale Law Stu­dents for Life, had a mixed crowd). Cru­cially, the lan­guage of Roe argues for the rights of doc­tors to per­form a pro­ce­dure, not of women to choose it; this med­ical right arises from the fact that abor­tion access was not ini­tially seen as a fem­i­nist issue but rather one of class. The impe­tus for national abor­tion reform, accord­ing to the authors’ research, orig­i­nated with pub­lic health advo­cates who rec­og­nized that poor women were dis­pro­por­tion­ately harmed by bar­ri­ers to access. Rich women could always drive, fly, or sim­ply pay for ser­vices, but poor ones were dying in the back alleys of lore. The Roe deci­sion was part of a push to repeal crim­i­nal laws so that doc­tors could pre­vent the injury and death often result­ing from ille­gal abortions.

When the fem­i­nist move­ment took up the cause, it was under an umbrella of gen­eral con­cerns around equal employ­ment oppor­tu­ni­ties; in par­tic­u­lar, NOW added the right to an abor­tion to a litany of con­cerns around salary, work­place treat­ment, and child care pro­vi­sion after the Equal Employ­ment Oppor­tu­nity Com­mis­sion failed to address sex­ual harass­ment law in the late six­ties. The fem­i­nists reframed abor­tion access as a sign of women’s social stand­ing writ large.

Simul­ta­ne­ously, Siegel and Greenhouse’s col­lec­tion traces the ori­gins of anti-abortion rhetoric, from reli­gious com­mu­ni­ties adopt­ing human rights frames, to a later attack on the ‘self­ish­ness’ of the fem­i­nist move­ment. Trends such as the ‘woman-protective’ argu­ments advo­cat­ing for the end of abor­tion as a means of ‘sav­ing’ women from its harms, a favorite sub­ject for Siegel, were not yet present. Instead, the anti-abortion com­mu­nity wished to min­i­mize the role of reli­gion in their rea­son­ing in an effort to uni­ver­sal­ize their rea­son­ing. In pub­lic debates over state reform, we can see the seeds of dis­cus­sions about fetal via­bil­ity and doc­tri­nal fram­ing. And the pub­lic, squea­mish on the issue, made sure that even when abor­tion was per­mit­ted, pub­li­cally dis­cussing it cer­tainly was not.

I had the unique plea­sure of proof­read­ing a sec­tion of the man­u­script this past Jan­u­ary. My por­tion included pop­u­la­tion con­trollers, reli­gious fig­ures and, sur­pris­ingly, Yale Col­lege (very small spoiler ahead). Appar­ently, when Yale went co-ed forty years ago, they the col­lege admin­is­tra­tors real­ized that they had in place a med­ical sys­tem aimed to serve a large body of young men. There were lim­ited ob-gyn ser­vices and lit­tle else related to the work­ing parts of female biol­ogy. So in response, Yale began a com­pre­hen­sive sex and inti­macy overhaul—they Yale bulked up its health depart­ment, insti­tuted a Sex Coun­sel­ing Ser­vice within the Men­tal Hygiene Depart­ment, and offered lec­tures that were over­sub­scribed even with 500 avail­able slots. The cul­mi­na­tion of this work was the ‘Sex and the Yale Stu­dent’ book­let (yes, the pre­cur­sor to the sex@yale ini­tia­tive cur­rently under­way at the Dean’s Office).

Unlike any mate­r­ial I have seen since arriv­ing here, the book­let dealt frankly with preg­nancy and its con­se­quences. Printed before the Roe deci­sion, ‘Sex and the Yale Stu­dent’ addressed the prob­lems sur­round­ing abor­tion head on. “YOU DO NOT HAVE TO HAVE AN ILLEGAL ABORTION. Repeat. YOU DO NOT HAVE TO LOOK FOR A CRIMINAL ABORTIONIST,” the pam­phlet cried. There was no ques­tion of coun­sel­ing the woman out of her choice. There was no pre­ten­sion that abor­tions were ille­gal and there­fore did not occur. Yale, like many other insti­tu­tions, was wor­ried about the safety, com­fort, and well-being of its stu­dents more than it was con­cerned about the polit­i­cal impli­ca­tions of openly admit­ting to ille­gal activ­i­ties, or of pick­ing a side in the abor­tion debate. Look­ing real­is­ti­cally at the con­cerns their stu­dent body, Yale was able to rec­og­nize that the health of women was of the utmost importance.

Few peo­ple know that Roe was actu­ally argued twice. The first set of pre­sen­ta­tions cen­tered on pub­lic health con­cerns, and the sec­ond around cul­tural and civil rights. This trans­for­ma­tion mir­rored how the abor­tion debate would change after it left the courts. Peo­ple on the far ends of the spec­trum on this issue gen­er­ally do not pred­i­cate their argu­ments on abor­tion as a med­ical procedure—pro-choice activists demand the con­trol over their bod­ies while anti-abortion groups wave a moral/religious flag. Today, after a decade of leg­is­la­tion slowly pry­ing abor­tion access from our hands, we rec­og­nize ugly sym­me­try at work. The first to lose access are those who were the last to gain it—poor women, unable to muster the resources to over­come even the small­est obsta­cles. The Hyde Amend­ment in 1997, which cur­tailed use of fed­eral funds for abor­tion, laid the ground­work for the Stu­pak Amend­ment loom­ing over today’s health care debate, and both aim squarely at low-income women’s right to make choices with­out con­straint. Anti-abortion groups have gone back to their human rights frame, albeit now in the­ory aimed at the well-being of mother and fetus alike Med­ical opin­ion, once used to sup­port the increased auton­omy of women, is now being used to sug­gest that women don’t have the exper­tise to merit this freedom.

But here at Yale, we know our rights are safe no mat­ter what CLAY threat­ens on the op-ed pages. The Uni­ver­sity, and our future elite sta­tus, will always pro­vide a way for us to make what­ever choices we desire. Close to the end of the dis­cus­sion, Siegel ques­tioned whether democ­ra­tiz­ing the abor­tion strug­gle was harm­ful to the move­ment at large. In so doing, those voices most able to push for their rights—those in a posi­tion of social power—were assuaged and qui­eted down with­out mak­ing sure that more dis­ad­van­taged per­spec­tives were prop­erly addressed. Few peo­ple at Yale worry about their access, even though we live amongst women in New Haven who are los­ing valu­able resources all the time. Instead, those who are still agi­tat­ing for secure rights are writ­ten off for beat­ing what many view to be a dead horse. Judg­ing from the tepid col­lab­o­ra­tion between the Women’s Cen­ter and CLAY, we will not be see­ing our repro­duc­tive rights cham­pi­oned in all-caps on this cam­pus any time soon.