Cross posted at Pink Scare
Every few years (lately, at least), a new nominee comes up for a position on the Supreme Court. For a week or so, the entire country is abuzz with constitutional chatter. Old news becomes news again, simply because we are reminded of it during Senate Judiciary committee hearings like those Justice Sonia Sotomayor is undergoing (or enduring?) now. Of course the perennial Supreme Court case for massive controversy is that of Roe v. Wade. Once again, abortion talks have been the most contentious and interesting in an otherwise boring hearing, thus far, and Roe has been the focus of some of the surrounding drama even outside the committee ("Jane Roe," who has become something of an anti-choice fanatic, was arrested outside the hearings).
Anti-choicers come out of the woodwork to remind us abortion is murder, while feminists and pro-choicers prepare to defend Roe until their dying breaths. As a pro-abortion rights feminist myself, such vociferous defense of Roe is tempting to me, but as one who sees the other dimensions to "rights," that go far beyond the government act of not actively stopping you from doing something, I have to remind myself to resist this game.
It's true that Roe v. Wade was monumental in assuring some American women could have some abortions. It was a vast improvement from the conditions of the pre-Roe days. But part of Roe's failure is in the very basis for the decision, the "right to privacy," as the court at the time and since, has seen in the constitution. Legalizing abortion on the grounds of a right to privacy narrows abortion rights to a neoliberal playing field. The factors of economics, geography, and everything else neoliberalism ignores, are ignored by the Roe v. Wade decision.
The fact that abortion has been framed by pro-choicers as a private issue, plays a role in nurturing public opinion into supporting things like the Hyde Amendment, which stop public dollars from being used for abortions. It prevents people from finding the language to demand a certain number of abortion clinics in every county, rural or not. Few women are helped by a law that guarantees her right to abortion, if the nearest clinic offering abortion services is 400 miles away. If this is an issue of individual privacy, however, how can we demand that the public assist us when we need the assistance? Abortion access isn't a matter or privacy but a matter of justice.
In other words, Roe v. Wade leaves us with a landscape in which women are told, sure, you're free to get an abortion, if you can find a place to get one, leap the access hurdles we've put in place, are of an age we deem appropriate, and have the money to pay whatever subjective price anyone decides to charge you, regardless of your financial position.
Yes. Of course abortion should be legal. But legalized abortion in the privacy viewpoint of Roe alone does not mean women have reproductive freedom or a just reproductive landscape.
Does this mean we should actively campaign against Roe? Not necessarily. I mean, say you get it overturned and abortion is left to the states. You might get a few outlier states that protect abortion rights and provide some sort of guarantee for their access, but for the most part, you'd have a lot of women in states that serverely limit their access to abortion services, even more so than they are now. That doesn't sound ideal to me.
I think the key is really about the discourse we use when we defend abortion rights. Let's not defend the Roe v. Wade ruling or try to explain where the right to privacy is guaranteed in the constitution until we're all red in the face. Let's talk about why abortion must be legal, for the safety and freedom of all women. But let's talk about reproductive justice in a much wider frame. Let's talk about money. Let's talk about access. Let's talk about rights for young people and minorities. Maybe someday Roe will be replaced, not by states' rights that further limit women's rights, but by federal legislation that recognizes the actual needs women have when it comes to reproductive freedom. Changing the discourse is the first step toward that.
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Yeah, I don't know about this privacy argument. I'm more about the bodily autonomy argument. I'm sure that's in there somewhere.
Two thoughts:
1) I've always had visions of a "Roe Mootness Act," where basically Democrats would enact the baselines set by Roe into positive statutory law as bare minimums for the states to respect. That would effectively end the judicial activism argument, because Roe would have been codified the normal way, and any anti-choice movement would have to overrule both the statute and the court cases. Conservatives would inevitably raise the state's rights argument; those who do so and who didn't oppose the D&X ban from a few years ago would be fun targets.
2) I've also wondered if the Thomas/Scalia interpretation of the commerce clause would be helpful. If they're right about what the commerce clause means, then I don't think the Congress can validly restrict abortion. Of course, that doesn't help against the states.
In Canada, we frame the right to abortion in terms of the right to security of the person, the right to liberty, and the right to equality. All of these rights are enshrined in our Constitution and our Constitution is interpreted by the Courts as evolving over time.
I think the American privacy justification possibly comes from the limitations of your Constitution. I don't think that the Equal Rights Amendment was ever ratified and I don't think that you have the equivalent of a right to security of person (which is different from the right to life). I'm not sure of these but I don't think that your Constitution is interpreted as an evolving document either so I can kind of see why the privacy justification is used by the Courts and by American feminists.
This is dangerous. While the privacy argument isn't ideal, it's what we have. There are enough anti-choice people trying to campaign against Roe v. Wade already. For us to do the same, even for different reasons, would be among the most monumentally stupid moves feminism could make. There's too much of a backlash now for its replacement (described in the post) to be enacted or even to come close.
Absolutely katemoore. I hope you realize I stated that danger quite clearly in my post and said I didn't advocate for campaigning against Roe, just not defending it as the sole justification of our right to abortion.
This was by far my favorite and most intellectually stimulating conversation I had when I was in my feminist law class in undergrad. I had a "Hell no!" reflexive reaction at first when my prof suggested that Roe could've been decided differently. And then I dug out my Constitution and loved every second of the debate we had over the next week.
And still, our very smart class never agreed on a legal solution. And I still haven't settled on one, either.
Have you read What Roe v Wade Should Have Said, ed. by Jack Belkin? 11 legal experts re-write the decision, either based in the same or different legal reasoning as the real Roe. My favorite book to geek out over (aside from the "photo appendix" of fetuses), and addresses a lot of the points made in your post.
There's a difference between saying that the private justification is "bad for women" and saying that it shouldn't be the "sole justification."
The privacy justification is a strong argument, from a legal standpoint, because, ironically, it trivializes Roe into a natural and logical extension of another case that is far more widely accepted, the Griswold v. Connecticut case. It is Griswold v. Connecticut that extended the privacy guarantee to birth control. It is not much of a leap to go from birth control to abortion, particularly when you consider the anti choice arguments that some forms of birth control such as Plan B can (rarely) prevent implantation. So there is a right to privacy in the Constitution for birth control that never prevents implanation but no right to privacy for birth control that sometimes does? Makes no sense! To reject that argument they would have to reject not only Roe but Griswold, and many, many, cases for which Griswold as precedent.
Talking about the safety and freedom of all women (or equality for women), money, and young women and minorities is wonderful, but form a legal standpoint it could actually complicate the debate. Not all of those things are guaranteed in law, as privacy is recognized as being.
I think the point of the privacy justification as the strongest argument relies on racism, classism, the difference of opinion in a current govt of racial, classist, homophobic, transphobia, able-ist and so forth structures. In the current climate, with so much anti-choice - how can we change a discourse without losing ones stuck on the old discourse? How can we combine discourses? How can we talk about yes it not only being a issue of privacy, of an inappropriate governmental control of our bodies (a larger movement and idea in general that crosses a lot of intersections) but of access, money, age, and discourses around our bodies and our identities (whether its women, women of color, working class people or trans people we all -apparently (sarcastic)- lack the ability the choose for ourselves what our bodies need)
My other question is how can we break down (and I am responding to your title) abortion rights as something that only involves "women"? Breaking down the word women. You might not see me walking down the street and identify me as a woman, but I can get pregnant - additionally, as a trans person the fight for loosening the grip of governmental control over my bodies, my identity and my decisions regarding the 2 is a fight very relevant in my life regarding all issues above. So how inclusive is the fight for abortion rights?
Abortion is a medical procedure in that it requires a doctor. In that Roe vs Wade is correct. We have got HIPAA to back us on it. The right to privacy can be defined in so many ways. We have the right to be left alone both by other people as well as by the government. The right to privacy also includes health issues as well as financial issues.
As far as JessK is concerned, it should be about your right to liberty and the pursuit of happiness. We are women. We women fight along side with the men in military. As a veteran, I don't think that any government should have any say over your body. I am also an adoptee. My right to my identity has been stolen from me for a long time. For me, abortion is the denial of life but adoption is the denial of my liberty and pursuit of happiness. If the government interferes with your business, they are denying you your liberty and pursuit of happiness.