The Problematic Framing of Abortion as an Issue of Privacy

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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 foundmajority 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.

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  • rachel-roth


    Thank you for this thoughtful post, Marianne.

    Another problem with “privacy” is that it is generally understood to be a negative right, that is, a right to be left alone by the government. In the abortion context as envisioned by Roe v. Wade, that meant that the government could not interfere with the decision of a woman and her doctor to terminate her pregnancy.

    A 5-4 majority of the Supreme Court interpreted this non-interference as absolving the government of any responsibility to help women exercise their constitutional right to an abortion. The Court therefore upheld the Hyde Amendment, ruling that Congress could subsidize prenatal care and childbirth expenses through Medicaid while denying abortion expenses, effectively depriving lower-income women of their rights.

    To put the Roe anniversary in context, Megan Peterson and I describe some of the numerous political and economic obstacles that low-income women must navigate in order to exercise their right to have an abortion. Legal abortion is a tremendous victory for women and for public health, but it is not yet one that all women share equally.


  • trustingwomen

    Thank you for addressing some of the problems with privacy.  As a minister, not a legal scholar, I am most concerned with the moral problems with the concept of privacy.  Feminists have long wrestled with the fact that many injustices and domestic abuses have been protected by principles of privacy.  As a value, privacy tends to coincide with values of isolation and hyper-individualism, as opposed to ethics of care, accountability, nurture, and right relationship.  

    How I wish prochoice, reproductive rights, and reproductive health activists would begin grounding their defense of accessible abortion in a framework of justice, care, and interdependency and leave behind hollow sounding defenses based on privacy.

  • colleen

    Setting aside the abortion issue for just a moment I would say that the need for privacy is deep seated in humans and not, as you suggest, diametrically opposed to values like  interdependency or justice. This is why therapists spend a lot of time working on what they call ‘boundary issues’.

    One of the problems with trying to reason with folks who identify as  ‘pro-life’ is that they so deeply disrespect women as individuals and moral agents in our own right that they have absolutely NO qualms whatsoever about codifying their dogma and trying to force everyone to submit to it. Thus we are forced to deal with situations like pharmacists who refuse to fill legal prescriptions for BC pills because the contraceptive “thins the uterine lining making it difficult for a ‘person’ to implant”.   The state of a stranger’s uterine lining is something ‘pro-life’  pharmacists believes he/she has the right to control and comment on in public and this despite the fact that said pharmacist and their church and the wider culture has abrogated almost all responsibility towards single mothers and their children.   This is just one example. As far as I can tell, the entire ‘pro-life’ movement has what we call boundary issues.

    So, anyway, back to abortion, I agree that the legal right to affordable   access to abortion and effective contraception should not hang entirely on privacy issues. But privacy is a human need and the arguments have never struck me as “hollow sounding”. My point is that, as a legal argument, basing reproductive and bodily integrity rights on privacy is inadequate but considerations of privacy  should always be part of the argument.


  • crowepps

    Abuses were protected by ‘privacy’ because the castle doctrine took it for granted that the only ‘person’ in the house was the man, and that the woman and children were merely his subsidiaries.  That was a result of sexism, not privacy.

    The idea that privacy is ‘hyper-individualism’ would be based on the idea that women in particular OWE care to others, must account for their actions because they OWE society conformity to right behavior, must NURTURE because that’s their ‘nature’ and where their efforts should be restricted, and must have ‘right’ relationships because self-actualizing, individual independent women are dangerous to society when they don’t have a relationship with someone who can keep them under control.

    I understand that as a minister, and someone concerned with morality and ‘right thought’ and ‘right behavior’, you may feel that behavior should conform and be for the benefit of a collective, that the group has the right to pressure individuals (particularly women) to focus on group goals instead of individual goals in isolation.  Personally, I think rights when done correctly always must include a tricky balancing act, so that, yes, privacy doesn’t degrade into mere selfishness, but also so that justice doesn’t degrade into authoritarianism, so that care doesn’t degrade into exploitation, and so that interdependency doesn’t mean cutting off all other options for women so that they have no escape from a life of carrying the burden of everyone else’s needs while being told to ignore their own.