Her Body, Our Laws

by Michelle Oberman

  On appeal, the Indiana appellate court overturned Patel’s conviction for feticide, finding that feticide laws did not apply to pregnant women, but only to third parties. However, the court upheld her conviction on the lesser charge of neglect of a child.37

  The debate over Patel’s case has much to teach us about how women might come to be prosecuted if abortion becomes a crime. Prosecutions will be reserved for exceptional cases—those in which the woman does not seem like a second victim to the prosecutor. And the most important factor in determining whether a woman will be seen as abortion’s second victim is whether there is someone else to view as the perpetrator.

  Consider how we might have responded to Patel if, rather than taking illegal abortion drugs, she had been given an abortion by her best friend Fay, a medical technician who had advised Patel about buying the drugs. If Fay had performed an abortion on Patel, I suspect the law would have viewed Fay, rather than Patel, as the perpetrator. How could she have preyed upon her trusting, vulnerable friend? How did she overlook the possibility that Patel’s pregnancy was too far along? She jeopardized Patel’s life.

  With Fay cast as the perpetrator, it would have been possible to see Patel as a second victim, as an innocent woman whose life was endangered at the hands of the real monster. If there is a moral justification for punishing a woman who induces her own abortion, but not one who hires another to do so for her, it is not clear to me.

  The second and more important lesson we learn from Patel’s case is that individual actors, rather than official policies, determine whether and how the law is enforced. The decision to report Patel to the police, the decision to prosecute her for a homicide offense—these were judgment calls made by individual doctors and prosecutors.

  Paltrow and Flavin’s forty-year study of pregnancy crimes demonstrates that Patel’s case was not unique in this regard. Instead, these cases demonstrate a dramatic pattern of selective law enforcement. Although women have been charged with pregnancy-related crimes in forty-four states and the District of Columbia, more than 50 percent of these prosecutions were in the South. One state, South Carolina, accounts for 93 of the 413 cases.38 Further analysis shows that “in individual states, cases tend to cluster in particular counties and sometimes in particular hospitals”:

  [I]n South Carolina thirty-four of the ninety-three cases came from the contiguous counties of Charleston and Berkeley. Staff at one hospital, the Medical University of South Carolina, initiated thirty of these cases. In Florida twenty-five of the fifty-five cases took place in Escambia County. Of these, twenty-three came from just two hospitals: Sacred Heart Hospital and Baptist Hospital. In Missouri twenty-six of the twenty-nine cases came from Jackson County. Of these, twenty cases came from a single hospital: Truman Medical Center.39

  This pattern of prosecution—one hospital, one county—speaks to individual crusaders, rather than careful policy making. And the resulting cases expose the most profound problem with this individualized exercise of legal power: it is unmistakably biased against the most marginalized women in society.

  Paltrow and Flavin found that almost 60 percent of the 413 cases in their study involved poor women of color. Needless to say, this rate far exceeds their representative share of the population.40 In spite of overwhelming evidence demonstrating that pregnant women of all races and classes abuse drugs at similar rates, 84 percent of these prosecutions were brought against minority women charged with having used an illegal drug.41

  Where are the white women?

  For decades, doctors and prosecutors have used the force of law to sanction poor pregnant women and, particularly, poor women of color.42 We saw this pattern in El Salvador, where the women prosecuted in relation to abortion are overwhelming poor, uneducated, and rural. And we will see more of it here, among poor minority women, as we intensify abortion restrictions.

  If history is any indication of what to expect should abortion become illegal, we will need to append an asterisk to the promise that women won’t be punished for abortion. The truth is, wealthy women will not be punished.

  Poor women may be prosecuted, though—particularly minority women who seek care at public hospitals after attempting to end their own pregnancies. There won’t be many such prosecutions; most doctors will opt to maintain their patients’ confidentiality.

  But we can be sure we will see some cases growing out of this scenario. We already have.

  CONCLUSION

  We started this chapter by recognizing the underlying questions one must ask about making abortion a crime: Will it stop abortions? If not, who will the law target, and who is it likely to catch?

  We’ve seen the answers to these questions, hiding in plain view: abortion will remain legal in some states and, where it is not, illegal abortion will be prevalent.

  We’ve seen enough to know that abortion prosecutions will be rare, and they will be set in motion not by an overarching policy but, rather, according to the moral sensibilities of individual actors. We’ve seen how these individual actors will tend to target the most marginalized women in society.

  I haven’t yet mentioned the indirect consequences of banning abortion. There is more that we can predict will happen as a consequence of making abortion a crime. First, we’re likely to see a rise in births to teenagers. Compared to adults, teenagers are less likely to use contraception, and they are slower to recognize that they are pregnant. Once they are pregnant, teenagers have a hard time accessing illegal abortions. In addition to being younger, less educated, and more vulnerable in general, teens typically lack the money and the mobility necessary to get abortions on their own.

  In El Salvador, the consequences of the abortion ban fall disproportionately on teenage girls. The country has one of the highest teen pregnancy rates in Latin America. Even as teen pregnancy rates are dropping in the United States and elsewhere worldwide, El Salvador’s rates are rising. A 2014 National Family Health Survey report notes that 23 percent of Salvadoran women ages fifteen to nineteen have had a child before age eighteen.43 There are serious long-term costs associated with teen motherhood, for the mother and child, and for society at large. Teen mothers are disproportionately likely to drop out of school. They are more likely than older mothers to raise their families in poverty, with negative consequences for the entire family’s health, education, and long-term stability.

  Nor is teen motherhood the only consequence of the abortion ban for adolescent girls. In addition, where abortion is illegal, one finds elevated rates of suicide among pregnant teens.44 In El Salvador, hundreds of pregnant girls commit suicide every year.45 Indeed, suicide is the highest cause of death among the country’s pregnant girls.

  There is every reason to believe we will see similar patterns among US teens in places where abortion becomes illegal. Although we are a wealthier country, the factors driving El Salvador’s teens to pregnancy, motherhood, and even suicide would be the same here. Here, too, teenagers will struggle to identify options when faced with an unplanned pregnancy. Here, too, teens are prone to catastrophic thinking. We can predict with certainty the news stories we’re likely to read, in places where abortion is illegal: rates of births to teens will rise, and on occasion, some of our poorest, most isolated pregnant teens will feel there is no way out but death.

  So, what are we to make of these facts? How are we to weigh the significance of what we know will and won’t happen, if Roe falls and states can make abortion a crime?

  It is important to remember Beatriz’s case in considering our answers. Those who morally oppose abortion derive an intangible, yet vitally important benefit from a law that reinforces their view. The law plays a significant role in helping to express collective values—to set as ideals, if not as norms, the things we hold to be true.

  We saw the lengths to which El Salvador was willing to go in order to defend the principles embodied in its abortion ban. By permitting Beatriz to end her pregnancy, but only in self-defense—only when the threat of her death became
imminent—El Salvador stayed true to its position that a fetus has the same rights as any other human being.

  For many, many Americans, the idea that the law makes abortion legal, without qualification, is anathema. They will not rest easily until the law is aligned with their moral position.

  In addition to resting more easily, abortion opponents believe that banning abortion may also have some deterrent effect on abortion rates. As we’ve seen, there’s no evidence in the aggregate to support the claim that banning abortion reduces abortion rates. Indeed, we’ve seen that abortion rates are actually higher in countries where it is illegal than in countries where abortion is legal. Still, it stands to reason that, by banning abortion, some women who otherwise would have aborted will carry their pregnancies to term. We just don’t know how many.

  Which brings us back to Cass Sunstein’s admonition against fanaticism: The true test of a law’s validity lies in assessing not simply its message but also its impact.46

  Is it worth it to you?

  I can’t answer that question. But I am absolutely certain that you need to do so. It’s at the center of the only meaningful conversation to be had about abortion laws.

  CONCLUSION

  PARTING THOUGHTS ON LEAVING BEHIND THE ABORTION WAR

  As I put this journey behind me, I’m struck by my feelings of nostalgia. I’ll miss the conversations. I’ll miss hearing the stories.

  For it’s clear that’s what I’ve been doing all along. Collecting stories. The stories people told me about how they thought about abortion and abortion laws felt surprisingly private. They were personal, like secrets.

  Our abortion battle is so constrained by slogans that we almost never get to talk about the ideas that underlie our positions, the things that lead us to care about the abortion issue in the first place. By this, I mean the big questions: what we make of sex, motherhood, love, the purpose and meaning of life.

  I will miss the way, time and again, strangers moved me to tears. How I sat in the gigantic gun store with Oklahoma senator Mike Reynolds and heard him speak of his faith that life begins at the moment of conception. How I cried when he described the guilt and the pain he felt about his wife’s use of contraception that prevented implantation, causing the fertilized eggs to pass, month after month. He didn’t persuade me to change, or even to reconsider, my position on legalized abortion. But he helped me see the world, for a time, through his eyes.

  You see, before this journey, it’s not just that I didn’t understand how pro-life advocates thought about abortion laws. It’s also that I had come to view pro-lifers in broad generalities, as if they were two-dimensional objects, not subjects.

  And unlike subjects, it’s easy to dismiss objects with contempt.

  I’m reminded of a favorite passage from George Orwell’s Spanish Civil War memoir, Homage to Catalonia, in which he recalls catching sight of a Fascist soldier on a dawn reconnaissance mission. The man was holding up his pants as he ran, and Orwell couldn’t bring himself to shoot him. “I had come to Spain to shoot Fascists,” he said, “but a man who is holding up his trousers isn’t a ‘Fascist,’ he is visibly a fellow creature.”1

  The most painful moment in my journey still stings, years later: it was when I learned how Tony Lauinger had characterized me. “She is pro-abortion,” he’d said. “Long experience has taught me that there’s nothing to be gained by helping gather intelligence from behind enemy lines from seemingly well-meaning academics.”

  Everything Lauinger said about me is pretty much true, although I bristle at the label “pro-abortion.” I’m an academic, I’m pro-choice, and I suppose that this project, like all of my work, might therefore be seen as coming from behind enemy lines.

  So it is puzzling, at first, to understand why his words made me feel as if he’d kicked the breath out of me. It’s because he’d rendered me two-dimensional. I can’t recognize myself in his description of me. He’d reduced me to a set of categories, to an object that he could regard with distrust and contempt.

  We pay a moral price for dehumanizing other human beings. Contempt and distrust corrode our ability to connect. They prevent us from recognizing ourselves in one another. They keep us apart.

  We pay a practical price, too. Our mutual contempt leaves us locked in debate over the question of whether abortion should be legal. And as we’ve seen, that question is not serving us well. It’s distracting us from the better question of how we think things will change if abortion is illegal.

  That’s the question I would have liked to ask Lauinger.

  To be sure, abortion laws have symbolic importance. Both sides in the abortion war care deeply about the messages sent by laws governing abortion. The pro-life world’s outrage that abortion legalizes killing is matched by the pro-choice world’s insistence upon the full legal autonomy of women. Honestly, I don’t see how we’ll ever resolve our ideological differences.

  In the meantime, though, our blinkered focus on whether abortion should be legal distracts us from the plight of the women and children most affected by our abortion laws. You met them in chapter 4 during journeys through Oklahoma and California: they are the most marginalized women in the country. Another child will thrust them deeper into poverty, but an abortion does little to lift them out of it. The war over abortion law draws our gaze away from them, relieving us of the obligation to notice, if not to reset, the odds against them.

  I think back on former Oklahoma House speaker Steele’s comment that “the best way to lower abortion rates is to deal with what causes women to want to abort in the first place.” It was a wistful observation, an afterthought to our conversation, yet it was also a point of complete agreement between us—a blue-state, pro-choice feminist and a red-state, pro-life minister.

  What would it look like to design a policy around the idea that no one should have to choose abortion because she is too poor to have a child? It would cost billions of dollars. Yet, we routinely spend such sums on the war over abortion’s legality. Might it be worth it to try something different?

  I dedicated this book to the women at Birth Choice of Oklahoma, and to those at Access Women’s Health Justice because they share core values that transcend our endless war over abortion. Both organizations understand how the deck is stacked against poor women and their children.

  I have a fantasy that, if I could just get them in the same room, talking about their clients, they’d see one another as kindred spirits. Maybe they’d forge an alliance. The battle over abortion law would rage in the distance, but in the living room, plans would be made to launch a new way of harnessing our power for the good.

  The hardest thing would be learning to listen to one another, for deep listening is the prerequisite to any meaningful conversation. It will take extraordinary patience to look past the trappings of our abortion team allegiances. But we don’t need to abandon our respective teams to sit together and recognize our shared goals.

  And in that hard-won conversation, we would not take long to realize that this fight over abortion laws is not the only battle women face. It’s not even the most important one.

  ACKNOWLEDGMENTS

  My deepest thanks to those who have helped me along the way. To my editors at Beacon Press: Alexis Rizzuto, who saw the potential, and Rachael Marks, who brought it home, helping me hear my own voice and knowing precisely when to praise effusively and when to pause. Thanks also to the production team for continual and kind support.

  To Santa Clara University and its Jesuit mission, which provided for all my needs: time, money, students, and intellectual freedom.

  To Peter Handler and Ariella Radwin, more midwives than readers. You coaxed my stories out of me, comforting me when the telling grew hard, listening so closely you understood what I wanted to say long before I figured out how to say it.

  To all those I met on my journey. Thank you for trusting a stranger with your stories. It was a gift to sit in intimate, earnest conversation. So different from the distorted rhet
oric with which we fight our abortion war. Whether or not you’re mentioned, every conversation I had helped shape my understanding of the stories I’ve told herein. Your vision helped clarify my own. I carry you with me, and am grateful for the company.

  To those in El Salvador, heroic in the face of struggles larger than any I’ve known. In particular, to the Agrupación Ciudadana por la Despenalizacion del Aborto, without whom I never would have taken this journey. To Hermana Peggy O’Neill and Centro Arte Para la Paz, for sheltering my body and feeding my soul. To the lay midwives of Suchitoto, “Las Estrellas,” Angeles, Darlyn, Johanna, Vilma, Zulema, and Yanira, for being my teachers.

  To the folks at Oklahoma City University Law School, who opened doors and minds, most notably my own. In particular, I am indebted to Lawrence Hellman, Arthur LeFrancois, Andrew Spiropoulos, and Dr. Eli Reshef.

  To Trisha Cobb, for deep insight and superb research assistance.

  Thanks also to those who read drafts: Felice Batlan, Khiara Bridges, Suzanne Carey, Paula Dempsey, Father Paul Goda, Ed Goldman, Liz Klein, Art LeFrancois, Rachel Marshall, Lynn Morgan, Hanna Oberman, Sarah Roberts, Carole Joffe, and Andrew Spiropoulos. And to those who helped workshop my ideas: Tracy Weitz, Carole Joffe, and the Bixby Center for Global Reproductive Health, my colleagues at Santa Clara University Law, my students in Abortion & the Law (spring 2015), Chicago-Kent College of Law faculty workshop, American Bar Foundation workshop, and 2017 anthropology students and faculty at Mt. Holyoke College and Smith College.

  Finally, to my friends and family. To Kathy Baker, Dina Kaplan, and Sarah Delson, for helping me shout down my demons. And to Larry Marshall, Rachel Marshall, Shlomie Marshall, Jaclyn Marshall, Yoni Marshall, Liz Klien, Hanna Obermen, and Noa Oberman, for letting me make abortion “table talk.” I am so very blessed by your presence in my life.