Yesterday, National Advocates for Pregnant Women released a letter
to the United States Senate Judiciary Committee in order to draw attention to
the violation of women’s rights and the erosion of women’s personhood that
would surely follow if the Supreme Court ever overturned Roe v. Wade. Along with the other 100-plus people who signed the
letter, I hope it will encourage members of the Judiciary Committee to engage
Judge Sonia Sotomayor in a broad discussion about reproductive rights and about
the status of pregnant women as full persons, which are increasingly under attack.
When Judge Sotomayor appears in front of the Committee this
July, senators across the political spectrum will likely try to ascertain her
views on Roe v. Wade. But do they – and do people across the
country – appreciate the broader scope of that famous Supreme Court decision? Roe v. Wade stands for women’s
reproductive self-determination: for the right to have an abortion and the
right to have a baby. Both dimensions of Roe‘s
promise are critical to women’s lives, yet most people are far more familiar
with one than the other.
Women’s Right to Abortion
Most of us know that Roe
v. Wade recognized women’s constitutional right to an abortion. In a case about the right to
use contraception decided one year before Roe,
the Court declared that if the right to privacy means anything, it is the right
"to be free from unwarranted governmental intrusion into matters so
fundamentally affecting a person as the decision whether to bear or beget a
child." The Court applied this logic to abortion, concluding that
women’s rights to liberty and privacy encompass the decision to terminate a
pregnancy. The Court understood "the
detriment that the State would impose upon the pregnant woman" if it denied her
the ability to make that decision.
Elaborating on this detriment almost 20 years later in Planned Parenthood v. Casey, the Court
stated that each woman
who carries a pregnancy to term "is subject to anxieties, to physical
constraints, to pain that only she must bear." Just because women have always
borne these burdens is not enough of a reason for the state to insist that they
do so; a woman’s "suffering is too intimate and personal for the State to
insist, without more, upon its own vision of the woman’s role… The destiny of
the woman must be shaped to a large extent on her own conception of her
spiritual imperatives and her place in society."
The late Dr. George Tiller expressed this philosophy more
succinctly when he said that abortion is about women’s "hopes and dreams." For
most women in the United States, those hopes and dreams include raising
children. Because women want to decide how many children to have and when to
have them, many also end a pregnancy at some point in their lives. At current rates, one in three women in the U.S. will have an abortion in her lifetime.
The Court held in Roe
v. Wade that women’s rights are not absolute, and struck a compromise
between women’s rights to reproductive autonomy on the one hand and the state’s
interest in potential life on the other. Roe
did not establish a contest between women’s rights and "fetal rights;" rather,
it recognized a state interest in the
potential life of the fetus, because fetuses are not persons with rights or
interests of their own under the constitution.
Over time, the Court has given greater deference to state
interests in potential life, allowing more restrictions on women’s abortion
rights throughout pregnancy, but the Court has always been clear that the final
decision rests with women, and that a woman’s health and life always come
first; this is why women can have abortions after viability, when their health
or life is at stake.
Women’s Rights during Pregnancy
Some people misunderstand – or misrepresent – the compromise
the Court struck, and argue that after a woman’s pregnancy reaches the stage of
viability, the state can intervene not only to stop a woman from having an
abortion, but to dictate how she should live as well.
Based on this misreading of Roe, some judges have granted orders to force women to submit to
cesarean surgery or blood transfusions against their will. Prosecutors have
invented crimes of "fetal abuse" that have no basis in statutes, such as
"delivering drugs to a minor" through the umbilical cord, or equating
stillbirth with homicide. Even though these cases rarely stand up to the
scrutiny of appellate courts, there is always another prosecutor in another
jurisdiction willing to bring such charges against women.
Judges have also sentenced women to jail time to "protect"
their fetuses, despite the troubling conditions in jails and prisons, including
documented cases of women giving birth in their cells without any medical
attention. Just this month, a
judge in Maine ordered a pregnant woman to remain in jail because she is
HIV-positive, until her attorneys and a coalition of "friends of the court" persuaded
the judge that this not only violated the woman’s rights to fair treatment, but
would likely result in disruptions in the medical care that he claimed was his
reason for imprisoning her.
Ours is a culture where a pregnant woman’s every move is
increasingly scrutinized by family, friends, co-workers, and perfect strangers.
People feel free to pass judgment on what a pregnant woman eats, drinks, and
does: Is she gaining too much weight or not enough? Is that coffee
decaffeinated? Is that a glass of wine in her hand? Pregnant women themselves
may be confused by conflicting messages, even from within the scientific
community, about what they should do, for example, whether it is safe to eat
fish. As unwelcome as these judgments and uncertainties may be, they pale in
comparison to what happens when those in the government decide to wield their
power as state actors to monitor and punish a woman for her actions during
The Confirmation Hearings as an Opportunity to Affirm
We know we can expect members of the Judiciary Committee to
ask questions about Roe v. Wade and
abortion rights in the confirmation hearings, and they should – Judge Sotomayor
does not have much of a record on these vital issues.
We also hope the Committee will ask Judge Sotomayor whether
she believes there is a point in pregnancy at which women lose their civil
rights, and if so, on what basis they lose them. This question is important,
because the actions of judges, prosecutors, and other state actors who would
deprive pregnant women of their rights rest on the assumption that pregnant
women are no longer persons. They rest on the assumption that when women become
pregnant, they somehow fall out of the category of "person" and into another category,
more reminiscent of the 19th century, where they can be erased
from the protections of the constitution. For example, when a judge sided with
hospital administrators who wanted to surgically remove Angela
Carder‘s fetus at 26 weeks of pregnancy because she was dying of cancer,
those parties treated Carder literally as if she were no more than a vessel for
the fetus, not as a person with her own aspirations for her future child, who
maintained her rights to informed consent and bodily integrity.
when police, prosecutors, and judges seek to jail women for using drugs when
they are pregnant, they are deciding that the normal rules don’t apply – while
they would rarely if ever arrest a man and charge him with drug possession on
the basis of a positive drug test, they do arrest women on that basis, because
in their eyes, being pregnant means that women have forfeited their rights to
equal treatment and due process of law.
The Court’s decision in Roe
v. Wade is not perfect. Feminists, as well as those who believe that
abortion should be illegal, have found fault with the decision; for instance,
feminists have critiqued the way that the Roe
decision relies on constitutional notions of privacy instead of equality. Yet
the meaning and significance of Roe
has been unmistakable: for 36 years, it has broadcast the message that women
have the right to make decisions about their bodies and their lives.
In practice, women cannot carry out their decisions without
access to reproductive health care, including safe abortion. Medical
professionals who provide abortion care are facing renewed risks of harassment
and violence. Dr. Tiller lost his life because of his commitment to ensuring
that women could control theirs. The Judiciary Committee, the entire Congress,
the Obama Administration, and the courts need to do more to protect the rights
and safety of women and medical providers.