The Problematic Framing of Abortion as an Issue of Privacy

@RHRealityCheck

Over the past months, candidates for the Republican nomination for president have fallen over each other to declare their opposition to abortion rights. Research indicates that they needn't bother: states are quite capable of restricting women's access to abortion without help from the federal government. In fact, 2011 was a record year for the passage of state provisions to limit abortion access since 2003.

The success of state legislatures in restricting women’s right to choose is surprising given the fact that, when asked, slightly more Americans consider themselves “pro-choice” than those who say they are “pro-life.” But one key reason might be that the fight over abortion in the United States historically has been framed as an issue of privacy. And the right to privacy offers poor protection for what is also an issue of life, health, and—above all—discrimination.

In this sense, the opinions issued by the US Supreme Court in abortion-related cases can in some ways be seen as indicative of what is happening across the country. In the earlier cases the Court established a balance between women’s autonomy and the government’s legitimate interest in the protection of growing fetal life. This balance was successively undermined over time, culminating with the Court, in 2007, declaring it constitutional to criminalize a specific abortion procedure even for women for whom this procedure is the least likely to jeopardize their health.

To reach this conclusion, the Court explicitly placed moral concerns over a narrowly constructed right to privacy. Justice Ginsberg alone dissented, noting that the mandate of the Court was to protect the rights of all, not the morals of some. But, on the face of it, such weighting is not an entirely unreasonable conclusion. After all, universal morality would appear to be a broader and more applicable common good than guaranteeing the right of a handful of women to a specific medical procedure because of concern for their private lives.

Or not.

Because what is at stake is not just, as Justice Ginsberg also noted, some generalized notion of privacy but rather women’s ability to realize their full potential. Or, put differently, when a government unduly limits access to a medical procedure only women need, it not only infringes their privacy, it engages in blatant discrimination.

Discrimination, as it happens, is also a better rallying cry for activism. It is noteworthy that while states have imposed many abortion restrictions over these past years, the push for marriage equality (also a pet peeve of Republican candidates) is gaining momentum. True, a majority of states still have legal or constitutional provisions on the books defining marriage as between one man and one woman. But more and more states are passing laws to allow same-sex partners equitable partnership rights in circumvention of those provisions. Perhaps more to the point, the push for marriage as a matter of equality rather than a private concern for those living in same-sex couples has led to broad support for general reform. An April 2011 CNN national opinion poll found majority support for same-sex marriage.

What is striking in comparing these two issues is that abortion access is more directly relevant to a larger number of people in the United States than sex-same marriage is. More than half of American women will experience an unintended pregnancy and 30 percent will have had at least one abortion by age 45. In comparison, little under 4 percent of the American population identifies as gay, lesbian, bisexual or transgender, of whom presumably only a proportion will want to settle in a same-sex marriage.

The broad support for marriage equality is certainly a testament to the organizing power of the LGBTI movement. It is also a reflection of more motivating messaging: same-sex marriage is an issue of equality that affects us all—an early court decision in Vermont on same-sex partnership rightly referred to “our common humanity” as the central point.

By contrast, through keeping its main focus on privacy the movement for abortion access is hamstringed: it divorces profoundly private decisions from general support for parenting, women’s equality, and access to comprehensive health care. Partially because of this, many women and girls who need abortions feel they are alone in battling the restrictions that apply to their situation, be it mandatory waiting periods, the additional cost of medically unnecessary sonograms, or the ban of the abortion procedure that best serves their health.

Governments absolutely have an interest in and right to regulate the provision of and access to medical services, including abortion. But the regulation cannot be based on the personal morals of the legislator or on a poorly veiled intention to eliminate needed health care options for just some people—in this case women.

Or, as Justice Ginsberg noted: “Our obligation is to define the liberty of all, not to mandate our own moral code.” Privacy does not adequately express that sentiment. It also does not adequately express the fact that abortion is a medical intervention three out of ten women in the United States will have needed by the time they are 45. Imposing undue burdens on access is an affront to us all.

UN Special Rapporteur: Abortion Restrictions Don't Work

@RHRealityCheck

Restrictions on abortions just don’t work in that they don’t result in the desired outcome.  This is the predictable, yet bold, conclusion of a report to be presented at the United Nations on Monday, October 24th by Anand Grover, a UN-appointed independent expert on health.  The report, which is part of an annual report-back from various human rights experts to the United Nations’ General Assembly, consolidates years of legal analysis and empirical evidence from other experts and concludes that abortion restrictions are unworkable and damaging to women’s health. Instead, the report advocates access to full, accurate, and complete sex education and information about contraception, as well as to all forms of modern contraception, because these services and state support for women’s equality actually do work to reduce the need for abortions.

Abortion restrictions are generally justified by reference to a desire to lower the number of terminations, be it by limiting access to abortion for all women, as in Chile, El Salvador, and Nicaragua, or just for the “undeserving,” as in most of the rest of the Americas including the United States. Some explicitly prefer pregnant women to die rather than having access to a life-saving abortion, but most refer to some sort of makeshift hierarchy of morals. 

“Most people, of course, should have access free of charge,” a high school friend from Denmark told me the other day. “But women who just keep having abortions: there really should be some sort of punishment for them.”

I have heard this sentiment echoed so many times.  “Seriously, I believe in access to abortion,” a young Mexican friend told me. “But really women need to show a minimum of responsibility.” This friend had, in the course of the same conversation, told me he recently had a condom break during intercourse.  When asked if he believed the woman in that case, if she were to become pregnant, had shown the requisite minimum of responsibility he was confused and horrified.  Of course she should have access to an abortion.  At least they had tried. 

These considerations about who, if anyone, deserves access to abortion are often at the core of public debate on the issue.  All but the most radical anti-choice activists would say that pregnant rape victims should have access, as well as those whose lives or health are threatened by the pregnancy.  This distinction between the vulnerable madonnas and the physically healthy sluts is, in fact, the bright line in determining public funding for abortion services in the United States today.

The truth of the matter is that abortion restrictions in law and policy have little if anything to do with how women and girls deal with their pregnancies.  Of the hundreds of women I have spoken to about their abortions, none mentioned the law as a deciding factor in whether or not to continue an unwanted or unhealthy pregnancy. Sure, the criminalization of abortion might be an impediment to getting a safe and timely abortion, but never a real barrier to getting one at all.

In fact, the only two questions policy-makers can helpfully ask themselves about their approach to abortion are 1) is it workable; and 2) does it actually work.

Most policies that allow only partial access to abortion for the “deserving” women are not all that workable. You need a process for determining the validity of rape claims, for example, and a solid definition of just how unhealthy a pregnancy needs to be to be unhealthy enough for the woman to be entitled to care.  In Ireland, where abortion is only theoretically legal for women who will die as a result of their pregnancy, a doctor asked me in visible distress: “How terminal does she have to be?  Can I help her if she has a 51 percent chance of dying, or does it have to be more?”

The notion proposed by my Danish friend—that irresponsible women who just have one abortion after another need to be punished—is equally unworkable.  How do you determine responsibility? And how many abortions are too many?  And what would be an appropriate punishment?  Carrying the pregnancy to term?  For many, the key moral question in the abortion debate is whether women who want their pregnancies terminated actually care.  But any policy based on a value-judgement on that count raises more ethical questions than it solves.  It is not workable.

Spread the word: abortion restrictions just don’t work.

Why the Use of Steve Jobs As An Anti-Choice Political Stunt Is Flawed

@RHRealitycheck

Steve Jobs' premature death has generated much online activity, some seeking to exploit his demise for political gain. In this category are articles suggesting that Jobs' status as an adoptee is a reason to restrict abortion access in general. The arguments put forward in this regard are flawed on two levels.

First, no individual circumstances can change the overarching reality that women and girls have abortions when they need them, regardless of the legal context. Restricting abortion access does not make the practice scarce, it merely makes it unsafe.

More than 30 percent of women in the United States will have at least one abortion before they are 45 years old, even though many live in states with few or no abortion providers. Most women who have abortions already have one child or more, and many refer to their desire to have time to parent as a key reason for needing an abortion. 

In fact, in my experience interviewing women around the world about pregnancy and child-bearing, abortion is the end rather than the beginning of their decision-making processes. Women talk to me about food for their children, time to play and concern with paying for their children's education. They talk about expensive birth control and child care and about limited health care options. They talk about how difficult it is to decide when and if to become a mother. And they talk about abortion as an option where other options have failed. 

They rarely, if ever, refer to the legality or availability of abortion services as a decision-making factor.  If a woman or girl feels she needs to terminate her pregnancy, she will find a way. I once spoke to a girl who had fired a gun into her abdomen because she felt too young to be a mother and abortion was illegal in her country.

It is also noticeable that abortion, in the United States, is more and more the recourse of women without financial resources.  In 2008, more than 40 percent of those having abortions in the United States were living under the poverty level, and this proportion is growing.  There is a reason for that: children are expensive and the United States provides few legal protections for parents. There is no federal law to protect paid parental leave or sick days, and there are no allowances for time off to breast feed. Federal law guarantees 3 months of unpaid extended sick leave to be used as parental leave, and only for those who are eligible, which excludes about 40 percent of American workers. There are no general provisions for health care--not even, in most states, for children. In 2010, almost 10 percent of all children (15 percent of children living in poverty) in the United States had no health insurance.

In short, though access to abortion services is becoming more expensive in the United States mainly because service providers are farther away, some women and girls see abortion as the only viable choice available to them.  In cases where women or girls might initially be inclined to carry a pregnancy to term and give the infant up for adoption, many would not be able to pay for prenatal care and to give birth--or even get time off for visits to the doctor and for the birth itself.  This in addition to the many very valid--and private--reasons women and girls might have to not want to carry a pregnancy to term, even if adoption were an easier and less costly option than it currently is.

Secondly, Steve Jobs' life experience doesn't work as an argument for limited abortion access, even by its own logic.

It is a fact that Steve Jobs was born before the legalization of abortion in the United States.  It has been suggested that Jobs' biological mother, faced with an unwanted pregnancy, contemplated having an abortion before she decided to carry the pregnancy to term and give the infant up for adoption. Her decision to do so was based on personal, and private, considerations.  This is as it should be.

Had Steve Jobs' biological mother decided to terminate her pregnancy in 1954 when she discovered she was expecting, she would have had to have an illegal and therefore potentially unsafe abortion.  And she might have died as a result, as more than half a million women worldwide continue to do every year because abortion access is illegal or severely restricted in their countries. Let us not wish ourselves back.

Common Sense Abortion Policy

@TheHill

Abortion should not be a hard, divisive issue – at least not politically.

This week, Gallup released its annual survey on how the US public feels about it.  For the past 10 years, the figures have hovered around the same lines, with about 50 percent saying they believe abortion is morally wrong, and around 40 percent said they believe it to be morally acceptable. Older people and Republicans score higher than others on being “pro-life” and seeing abortion as “morally wrong.”

The survey also tracks how the American public feels about abortion policy. Between 50 and 60 percent say abortion should be legal in some circumstances.  Another 20 to 30 percent believe it should always be legal, and 15 to 20 percent say it should always be banned. 

Considering that discussions about abortion during the annual budget season in Congress this year threatened to shut down the federal government, some politicians might be tempted to scrutinize the Gallup survey for hints on the most politically expedient position to take on this issue.

That would be a bad idea.

Surveys on morals generally make for poor policy-making tools, not least because they can be read selectively. One Catholic blog celebrated the fact that 72 percent of those surveyed this year want abortion illegal, at least in some circumstances.  But if you read the figures from the opposite side of the debate, they show that a higher percentage of those surveyed (77 percent) believe abortion should be legal, at least in some circumstances.  Neither reading would be particularly helpful in crafting a policy response to abortion that allows for real, informed, and healthy choices.

Instead, politicians should be looking at studies on contraception use, current abortion practices, and pregnancy.

Because, if they do that, they’ll find that 1 in 5 women in the United States feel they need to terminate a pregnancy at some point in their lives.  Study after study has shown that women and girls have abortions when they need them, regardless of the legal or political context.  Knowing this, politicians should realize that the only two things a government can affect through legislation and policies are 1) to what extent abortions are needed; and 2) to what extent abortions are safe.  That makes the job of forming abortion policy a lot easier and less divisive. Few would contend that they wouldn’t want to reduce the need for abortion. And few would want abortions to be unsafe.

Abortion is obviously scarcer in situations in which women get pregnant when they want to be, and when they are in a position to expand their families.  This requires not only access to contraception and scientifically based sex education, but also paid family leave and support for child care.

Or look at it from another perspective. In countries where abortion is illegal, it is rarely scarce.  In Argentina, where abortion is criminalized for most women, an estimated 40 percent of all pregnancies terminate in abortions.  In Peru, with a similar legal framework, that proportion is 37 percent, and in Chile, where all abortion is illegal, the proportion is 35 percent. In Mexico and the United States, where the legality and access to abortion varies widely from state to state, the proportion is 20 percent. (All percentages calculated by using public figures on abortions and annual live births.)  

So in fact, where abortion is illegal, it is equally if not more prevalent than in jurisdictions where it is legal. And where abortion is illegal, it is much more likely to be unsafe.  

So, policy-wise, abortion is easy.

Of course, this does not mean that abortion doesn’t generate strong feelings.  Most everywhere, the issues related to abortion are framed as a “battle,” either for women’s lives, rights, and health, or for the life of the unborn child.  Positions are presented and regarded as immovable and based on fundamental rights. 

And it also does not mean that terminating a pregnancy doesn’t present complex questions about the worth of human life, and about when a human being begins to exist.

And it definitely does not mean that the emotions that come with facing an unwanted or unhealthy pregnancy are uncomplicated or straightforward or always lead to the conclusion we expect.  I have spoken with ardent supporters of abortion rights who have chosen to carry unplanned pregnancies to term because they felt a child grow inside them.  And I have spoken with equally ardent supporters of abortion bans who have chosen to terminate pregnancies because they just could not face having a child.

But it does mean that surveys on morals are not useful in shaping effective policies on abortion. Instead, if policymakers want to make policy that has some impact on how frequently abortion is used, they should look to research on the social, economic, and health factors that affect a woman’s ability to plan her pregnancy in the first place.  That is what makes the difference.

How Not to Address Teen Pregnancy

This past weekend, New Zealand found itself in the midst of a loud public debate over the case of a  teenager who procured an abortion with the support of her school counselor, without  informing her parents. The parents were angry, and much was said about the ethics, propriety, and legality of the situation.

The main issue was not whether abortion should be legal there (it is) or whether the state may be justified in limiting access (it  does).  The question was whether parents have a right to interfere with (or at least know about) their daughter’s decision.  New Zealand law says they don’t.  In the United States, over 40 state legislatures and the Supreme Court have come to the opposite conclusion.

In the United States, as in New Zealand, the arguments for parental involvement laws include an assertion that they contribute to lower teenage pregnancy and abortion rates, and that they improve family communication.  There is no evidence to support this. The clearest documented impact in the United States of these laws has been an increase in the number of minors traveling outside their home states to get abortions in states that don’t mandate parental involvement or  have less restrictive laws.

Moreover, the American Academy of Pediatrics has noted that parental involvement laws don’t  promote family communication, though  they  increase the risk of harm to the adolescent by delaying access to appropriate medical care.  In fact, most teenagers who seek abortions—in particular younger teens—voluntarily seek their parents’ involvement, regardless the law.  And research has shown that adolescents who are strongly opposed to informing parents for fear of a negative or coercive response tend to predict family reactions accurately.

A stronger argument for parental involvement is that an abortion is a serious medical procedure, and the child should be able to count on her family for support. This is indisputable.  What is under dispute in the recent debate in New Zealand—and what should be under dispute in the United States—is whether these laws help increase that support, or whether they can have the opposite effect.  Just because the US Supreme Court has said that parental involvement laws are constitutional doesn’t mean they are helpful either in preventing pregnancy -- or in helping a young girl who finds herself pregnant.

Many American politicians decry the US teenage pregnancy rate, which is roughly three times the rates in  Germany and France, more than four times  the Netherlands rate, and 50 percent higher than New Zealand’s. 

There are good reasons to seek to prevent teenage pregnancy. First of all, early pregnancy can have adverse physical health consequences.

And having to care for  a child affects access to education, employment, and public life for the young mother—and perhaps for her baby as well. Changes in the mother’s life from an unplanned pregnancy can be surprising and even oppressive. And teenage pregnancies are more often than not unintended.

There are plenty of good answers to what to do about high teenage pregnancy rates. They include ensuring that teenagers both know how to prevent pregnancies (scientifically based sex education) and have access to the means to do so (modern contraception).  There are also more intangible factors, such as positive body image for girls, policies that promote gender equality, and greater openness about sex. Studies have shown that countries that score high on all of these points tend to have lower levels of teenage pregnancy and in many cases abortion.

The United States has a long way to go to ensure access to age-appropriate, comprehensive sex education and modern contraception, and US teens could certainly use support in developing positive notions of their bodies, gender equality, and healthy sexuality.

But rather than investing in these areas, state legislatures are marching forward with more and more legal restrictions on access to information and abortions, including parental notification or consent,  and mandatory waiting periods and sonograms.  These laws are heavy in government intervention and  don’t deter teen pregnancies.   

US legislatures would be better off considering what policies would best protect the rights of the pregnant girl to have the health information and services she needs, to be consulted and heard in matters that concern her, and to have her best interests protected by the state. These questions were raised this weekend in New Zealand.  It is high time they are raised in the United States as well.