Beyond Privacy, Toward Equality

If you have taken public transportation
in New York City lately, you have probably seen the ads that say "Abortion
Changes You
" and "Women Deserve Better."  As a reproductive justice
advocate, I instantly recoil at the taglines.  These campaigns
are the latest attempts by the anti-choice movement to advance a "pro-woman,
pro-life" message – a message that insinuates that abortion is something
always regretted and always something to be avoided at any cost. 
Feminists for Life goes so far as to declare that "abortion is
a reflection that our society has failed to meet the needs of women"
and that women are "driven to abortion."  It is the same
paternalistic attitude that I found so outrageous in Justice Anthony Kennedy’s opinion
in Carhart.

It seems clear that these "pro-woman,
pro-life" campaigns have usurped images and ideas that were once
in the domain of the reproductive rights and justice movements. Young
women of color are featured in both campaigns, and it takes only a small
leap of my imagination to change the taglines to "Immigrants Deserve
Better" or "Affirmative Action Changes You."  Though the
tactics have shifted from fringe pictorials of the macabre to poignant
woman-centric portraits, the goal remains the same: eliminate a woman’s
right to choose an abortion.  Unlike the campaigns of the past
however, the more recent anti-choice ads also function to chip away
at the underpinning of our reproductive rights law by giving the state
a new interest in "protecting" women from abortion. 

The Supreme Court declared in Roe v. Wade that the right to privacy under the Due
Process Clause of the 14th Amendment was "broad enough
to encompass a woman’s decision whether or not to terminate her pregnancy." But the Court did not declare the right to privacy to be an absolute
right, and said that a woman’s privacy right "must be considered
against important state interests in regulation."  Thus, Roe
has become vulnerable to anti-choice arguments that are based on the
belief that the state should regulate women’s decisions about abortion
because the state knows what is good for women.  Instead of advancing
notions of gender equality over the years, our reproductive rights jurisprudence
has become increasingly paternalistic.  

Would this have happened if the Justices
had decided Roe v. Wade on equal protection grounds instead?
I think not. 

The Declaration of Independence proclaims that, "all Men are created equal,
that they are endowed by their Creator with certain unalienable Rights,
that among these are Life, Liberty, and the Pursuit of Happiness."
Yet the ideal of equal rights for all individuals was contradicted by
the existence of slavery and the denial of rights to some people because
of their race or gender.  In fact, the word "equality," did
not appear in the Constitution until passage of the three Reconstruction-Era
amendments: the 13th, 14th and 15th
Amendments.  The  14th
in particular declares
that no state may deny "to any person within its jurisdiction the
equal protection of the laws."  Federal courts have also applied
equal protection limitations to the federal government through their
interpretation of the due process clause of the 5th Amendment. 
In short, the equal protection clause ensures that neither federal nor
state governments may classify people in ways that violate their liberties
or rights under the U.S. Constitution. 

What is significant to me about the 14th
Amendment equal protection clause is that it applies to "any person"
(emphasis mine). The text does not specify "man," "woman," or
"citizen" is subject to the equal protection of the laws. Applied
to the reproductive rights context, this means that advancing reproductive
rights and justice is fundamentally about achieving equality for
all people
.  We cannot subordinate one group’s struggle over
another.  Had Roe v. Wade been decided on equal protection grounds,
our fight for reproductive rights would extend beyond stopping government
intrusion. It would be focused on dismantling all barriers to access
ensuring that all individuals are entitled to meaningful access
to health care.  

The ideal of equality forces us to think
beyond the individual and to carefully consider how inequality can impact
a group’s ability to thrive based on a number of variables including
race, class, gender identity and citizenship status. Hence, we cannot
look at issues in isolation or through a singular classification. 
It is for this reason that many reproductive justice advocates are also
involved in the struggle for comprehensive immigration
, prison abolition and health care reform.  In all of these movements, men and women
are making demands on the government for better protections and conditions
for those who are most impacted by inequality.  

Principles of equality also encourage
us to look long-term and dream about the type of country we want. 
Perhaps it would have helped us avoid repeat ballot initiatives like
California’s Prop 4 and the South Dakota’s Measure 11, where short-sighted approaches for fending
off the initiatives resulted in the opposition tightening their strategies
and more effectively honing their messages.  

Making the government responsible for
securing equal protection is not a paternalistic function. Rather, it
would reframe reproductive rights as fundamental to achieving gender
equality, and would pave the way to developing a doctrine of affirmative
rights that can be integrated with human rights. As Election Day draws
near, let’s vote for a government that goes beyond keeping laws off
our bodies.  Instead, let’s vote for a government that can create
laws to keep our bodies and communities safe and healthy.

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    The Abortion Changes You outreach is meant to be a safe place set aside from labels, politics and debate. A place where men and women can come as they are anonymously, while still experiencing community through the knowledge that they aren’t alone. The Web site and the book I wrote, Changed, specifically focus on men and women who are experiencing troubling emotions after an abortion – either their own abortion or the abortion of someone close to them.

    Of course, as you point out, not all men and women will experience troubling emotions. In fact, men and women have a variety of reactions after an abortion ranging from relief to paralyzing guilt and grief. Many individuals also experience conflicted emotions that are both positive and negative.

    As you can image, the men and women that visit will most likely do so because they are experiencing difficulty after an abortion. Although most of the personal stories that have been submitted to the site express painful emotions and deep regret, there are others that paint a different picture.

    For example, on the Explore page of the Web site one woman shares:

    I went through a stage after dealing with the abortion where I just wanted to have a baby (and be in a stable relationship). Prior to being pregnant I vowed NEVER to have children and really didn’t ever want any. After the abortion it was the total opposite. All I thought about was meeting a great guy, getting married, and having kids! It has finally ceased. I am back to my old self and am not planning on having children any time soon! I just wish my boyfriend could find a better way to deal with this issue.

    Note: I was pro-choice before having the abortion, I never thought I would have to use it. After the abortion I am still pro-choice, but I will never use that choice again.

    Another woman shares:

    I had an abortion and I do not regret it at all. It freed me to live my life, and to avoid a life of poverty and struggle. I was not ready to have a child, nor do I feel that it was wrong for me not to subject myself to the experience of childbirth and adoption.

    While yet another woman shared this after reading the subway placard:

    Now that it’s at least three weeks after the procedure I feel depressed and alone. Even my fiancé can’t control my mood swings and depression. Sometimes I feel like committing suicide in order to release the soul that was once in me. I feel like I don’t deserve to live anymore. I’m 24, confused and alone. I hate myself for what I’ve done, I felt like I was the only one suffering until I found this website on the train.

    In a culture that often ignores the real men and women that experience abortion, Abortion Changes You seeks to provide a safe place devoid of the labels and rhetoric.

    Michaelene Fredenburg

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    The definition of “paternalism” that RH Reality Check, Catholic pro-choice advocates, etc have been promoting in these latter days is a little bizarre.

    It’s actually Roe v. Wade that was the paternalistic decision, extending a legal exemption over an action that was criminalized, and for which it is possible to construct a rational legal argument for criminalizing. Roe enabled women to evade legal accountability for their actions as the law framed it at the time. It strikes me that this is wholly inconsistent, and biased in a way that excuses the actions of pregnant women.

    There were and are some sound reasons for allowing this legal evasion– many women really *don’t* have adequate control over their persons. Revoking Roe v. Wade removes the edifice that is offering legal protection to all pregnant women because *some* pregnant women really aren’t masters over their environments. To remove the paternalism of Roe v. Wade would indeed lead to outright victimization of *some* women. Personally, I wouldn’t want to see these women re-victimized.

    As far as constructing some sort of “equal rights” rationale, the paternalistc court extended the “right to privacy” because it really couldn’t construct a fundamental right. That is to say, society considers fetal life important. The fundamental right that women have in this area is the right to make free will decisions with regard to sexual intercourse, not to dispose of the human products of free-will intercourse. The “equal right” vis a vis men is your right to your personal bodily integrity.

    I’m sorry, but everything else is paternalism: the court picked women over the fetus because it made a judgment call about women’s ability to control their own bodily integrity. But apart from rape and extended to all women as a class, Roe v. Wade is based on a logic akin to pleading criminal insanity. People sitting on the court today know that’s the state of abortion law. If they come off sounding like they’re *patronizing* women, it’s because women have been patronized, rather than held to account.

    I find it peculiar that pro-choice advocates ignore the real rights of women to control over their persons along with our obligations to be responsible for the product of our free wills. I agree that the pro-life position has some real nastiness embedded in it, but I also sort of think that women need to reassess their assumptions about what their legal rights and obligations should be. The modern women’s movement is no longer in its infancy. I simply don’t agree that other women should be able to construe my citizenship rights and obligations along the logic extended to children and the legally insane.

    I’m rather inclined to think there is no legal argument for a fundamental “right to abortion,” in the presence of free will sex and barring serious health threats forthcoming so long as American society still values fetal life. Attempts by pro-choice advocates to undermine the perceived status of fetal life haven’t really been successful. This surprises me not a bit.

    Nobody said that’s “fair” to people who fervently believe in a fundamental right to obligation free sex, but there are any number of things that happen in life that will disrupt your life expectations. Those are not “fair” either, and there is no legal paternalism contorted into a right to which we may avail ourselves when those hit. Today, we most certainly do hold biological fathers with slim life chances as it is legally accountable for children they didn’t really agree to have, of their own free will. The paternalism to which women avail themselves is quite considerable.

    So, color me completely unmoved by RH “Reality Check’s” version of what’s paternalistic and what isn’t.