Her Body, Our Laws

by Michelle Oberman

  doctrine of double-effect, 23, 32, 149n29

  drug addiction. See pregnant addicts ectopic pregnancies, 18–19

  Education and Employment Ministry, The (TEEM), 89

  El Salvador: abortion drugs availability and efficacy, 45; abortion law’s effect on wealthy women, 65; addressing of wrongful convictions, 60–62; anti-abortionists’ focus on the fetus, 65; arrests made after hospital admission, 10; availability of documentation of abortion prosecutions, 52; basis for overturned convictions, 62; case of an abortion petition (see petition for an abortion in El Salvador); constitution’s position on when life begins, 30–31; correlation between abortion rates and abortion laws, 44; doctors’ role in reporting abortions (see doctors and abortion detection); dominant religious affiliations of citizens, 23; focus on arresting women, 128–29; goal of abortion-rights activists, 61; impact of abortion ban on the birth rate, 63–64; influence of a women’s socioeconomic status on accusations, 65–66, 156n56; investigation of women for abortion-related offenses, 55; legal distinction between abortion and homicide, 56, 154n37; legal standard for proving a crime, 49, 153n23; legislative assembly’s rejection of pardons, 63; moral boundaries expressed in the abortion ban, 41; number of illegal abortions every year, 44; passing of the law banning abortion, 43; patient confidentiality laws, 47, 152n17, 152n20; petitions filed to overturn abortion-related homicide, 61; potential medical consequences of a surgical abortion, 44–45; pregnant-teen suicide rate, 136–37, 165n44; pressing of charges in a criminal case, 53, 154n35; rates of unsafe abortions, 45–46, 152n12; restrictions on treating ectopic pregnancies, 18–19; scope of its abortion ban, 17; socioeconomic status’ role in the risks of illegal abortion, 64, 125; suicides among pregnant teens, 64; targeting of the poor in public hospitals, 66, 156n57; teen pregnancies and, 64, 136, 165nn43–44; unwed teen birth rate, 64, 155n53; wrongful convictions of women, 52–53, 55, 57–60

  Farabundo Martí National Liberation Front (FMLN), 22

  Faundes, Anibal, 27

  Ferguson v. City of Charleston, 156n57

  feticide. See women who killed their children

  Fiscalia de la Republica, 17

  Flavin, Jeanne, 130, 135

  Florida, 134

  Forsythe, Clarke, 127

  Fortin Magana, Jose Miguel, 21–26

  Funes, Mauricio, 26

  Garcia, Sara, 36–38

  gay rights, 75

  Gordy, Katie, 100. See also Birth Choice

  Grossman, Dan, 125

  Guidos, Alejandro, 46, 148n16

  H&H Shooting Sports, 82

  Handbook on Abortion (Wilke), 106

  Haynes, Bruce, 162n16

  Hellman, Lawrence, 70

  Herrera, Morena, 61

  Hippocratic oath, 47, 52

  Homage to Catalonia (Orwell), 140

  Hope Pregnancy Center, 74

  Human Life Amendment, 160n11

  Human Life International, 26

  Hyde Amendment, 113, 158n11, 158n13

  infanticide. See women who killed their children

  Instituto de Medicina Legal (IML): criteria for permitting an abortion, 21; examination of Beatriz, 25–26; experts assembled by, 22–24; status and staffing, 21–22

  InterAmerican Court of Human Rights, 156n56

  Johnson, Constance, 89

  Jordan, Anthony, 72–73, 79, 89

  Kahan, Dan, 112

  Karina’s story, 52–53, 55

  Kasich, John, 162n16

  Kern, Sally, 84

  Kiesel, Ryan, 85, 88–89

  La Maternidad, 16

  Latin America, 45–46, 124, 151n8. See also Chile; El Salvador

  Lauinger, Tony: contribution to pro-life education, 156–57n5; influence over the legislature, 80–81, 82, 84, 85, 89; power over the political process, 70; pro-life activism beginnings, 71, 156–57n5; refusal to meet with a pro-choice person, 79–81, 140

  law of self-defense, 34–35

  LeFrancois, Arthur, 70

  Louisiana, 163n23

  Luker, Kristen, 71

  lupus, 16

  Lyerly, Anne Drapkin, 58, 59

  Malta, 10

  Mancini, Jeanne, 162n16

  Marx, Paul, 106

  maternal health exception, 17, 86–87

  maternal mortality rates, 8, 124, 146n8

  Mayora, Carlos, 29, 31, 32–34, 65

  Merchant, Rae, 100. See also Birth Choice

  Mexico, 128

  Mifeprex, 45

  mifepristone, 45

  miscarriage: distinguishing abortion from, 46, 48–49, 52, 65; drug induced, 8; percent of pregnancies ending in, 125; self-induced, 44; wrongful convictions and, 56, 58, 61, 62, 131, 133

  misoprostol: efficacy of, 45; popularity in Latin America, 151n8; use of in Chile, 8

  Mississippi, 163n23

  Missouri, 134

  Molina, Ramiro, 8

  Munoz, Dennis, 49, 56, 60, 61

  National Right to Life Committee (NRLC), 71

  Nicaragua, 10

  North Dakota, 163n23

  Oklahoma: abortion’s unifying effect on the Republican Party, 77; anti-abortion activists’ vision for the new laws, 79; anti-abortionists’ activities, 82; AUL rating for the legislature, 70; Cain’s career, 75–76, 78; centrality of organized religion in public life, 72; consideration of the impact of abortion laws on women, 93–94; cost factor in abortion, 79, 87; counseling by faith-based organizations, 74; “culture of abortion” and, 82–84; evidence of increased homogeneity of American communities, 90; history of supporting legalized abortion, 70–71; Lauinger’s influence over the legislature, 70, 80–81, 82, 84, 85, 89; Lauinger’s pro-life activism, 71, 156–57n5; Lauinger’s refusal to meet with a pro-choice person, 79–81, 140; lawmakers’ view of the purpose of abortion laws, 85–86, 87, 94; level of consideration of the likely impact of a ban, 86, 87, 93; misinformation about oral contraceptives, 83–84; moral basis for opposition to abortion, 81, 83–84, 85; new term limits law’s effect on the legislative agenda, 77; opposition to the “maternal health exception,” 86–87; Personhood Act, 84, 85, 92; political leanings in elections, 69; political power of constituent groups, 75; positions on exemptions for rape, 87; power of single-issue advocacy, 92–93; power of the pro-life movement to influence people, 87; predictions of the political impact of a reversal of Roe, 88–89, 93; pro-life activists’ alliance with faith-based communities, 72; restrictive abortion laws’ impact on poor women, 75, 78–79; Reynolds’ motivation for his political service, 81–84; SBC’s involvement in abortion politics, 72–74; Steele’s legislative record, 91; volume of anti-abortion laws passed after 2006, 77–78; work of a crisis pregnancy center (see Birth Choice)

  Oklahomans for Life, 71

  Oklahoma Right to Life, 72

  oral contraceptives. See contraception

  Organization for the Family, 20

  Ortiz, Guillermo, 16, 17–18

  Ortiz, Melissa, 110

  Orwell, George, 140

  Paltrow, Lynn, 130, 135

  Pan American Health Organization, 64

  Patel, Nareshkumar, 82

  Patel, Purvi, 132–33, 164n33, 164n36

  patient confidentiality: adherence to by private practices, 50, 51, 53; imperative of for doctors, 46–48, 53, 54, 152n17, 152n20; portrayal of medical confidentiality as a commodity, 50, 53

  Personhood Act (2010, 2012), Oklahoma, 84, 85, 92

  Peru, 156n56

  petition for an abortion in El Salvador:

  anencephaly diagnosis, 17; argument against a medical need for an abortion, 32–34; background, 13–14; Beatriz’s decision to not get sterilized, 38–39; Beatriz’s living conditions, 36–38; Beatriz’s relationship with her husband, 39–40; belief that Beatriz became pregnant irresponsibly, 35–36; constitutional right to life consideration, 17, 19, 27, 28, 30–31; doctrine of double-effect and, 32, 149n29; experts assembled by the IML, 22–24; filing of the petition to the court, 19–20; ideological basis of each sides’ arguments, 41; IML’s
criteria for permitting an abortion, 21; IML’s examination and conclusion, 25–26; IML’s status and staffing, 21–22; ironies in Beatriz’s medical status, 28–29; lack of legal support for an interruption, 17; law of self-defense and, 34–35; law’s “immediate danger” to life requirement, 29–34; legal jeopardy for the attending doctors, 35; legal rationale for maintaining non-viable pregnancies, 19; media harassment of Beatriz and her family, 20–21; medical committee’s recommendation, 17; medical impact of pregnancy for Beatriz, 16; medical jeopardy caused by the court’s decision, 28–29; obstetric profession’s position, 23–24, 148n16; point of law that allowed the doctors to intervene, 35, 149nn32–33; political firestorm over the case, 26–27; public response to her petition, 20; required treatment for high-risk pregnancies, 17–19; stress and vulnerabilities in Beatriz’s life, 39, 40; technicality that limited the defense’s case, 27; timeline of the courts’ decisions, 19, 20, 25, 26, 27–28

  Pinochet, Augusto, 7

  Planned Parenthood, 1, 2, 4, 114, 159n11

  Planned Parenthood v. Casey, 4, 114, 159n11

  poor women: cost factor in abortion, 9, 79, 87, 125; cost factor of motherhood, 97–98, 106, 107, 109–11; governmental priorities regarding the costs of caring for children, 109; impact of abortion laws on, 66, 75, 78–79, 113, 115–16, 117, 123, 156n57; impact of restricting federal funding for abortion, 113; indirect consequences of a ban on abortion, 136–37; options for medical care, 51; pregnancy’s impact on existing vulnerabilities for, 1–2, 3–4, 108–9; public policy’s impact on poor women’s mothering choices, 111

  preeclampsia, 16

  pregnant addicts: circumstances leading to drug use, 3; inadequacy of drug treatment centers for, 4; lack of access to abortion, 4; relevancy of abortion’s legal status for, 4–5, 6–7; responses to pregnancy, 3–4; societal fear of drug-addicted babies, 3

  Privileges and Immunities Clause, US Constitution, 123

  pro-choice: definition of, 12; framing of the potential outcomes of criminalizing abortion, 119, 127; majority of states’ position on, 122; political power of constituent groups, 75; position on abortion, 141; reaction to a post-abortion conviction, 132–33, 164n36; reaction to prosecutions, 130

  pro-life movement: alliance with faith-based communities, 72; campaign for a constitutional amendment, 160n11; lack of a consensus on what is acceptable, 122; lawmakers’ testing of their power to regulate abortion, 113, 158–59n11; positions on punishment for women, 126–27, 142n16; power to influence like-minded people, 87; pro-life versus antiabortion, 103; reaction to a post-abortion conviction, 132–33, 164n36; reaction to Oklahoma’s Personhood Act failure, 84, 85, 92; services focus of a crisis pregnancy center, 103

  public choice theory, 92–93

  Ramirez, Jorge, 32

  rape: abortion exception for, 10, 36, 61, 78, 86, 87, 89, 113, 122; absence of an abortion exception for, 17, 43; legislators’ positions on exemptions for, 87; vulnerability of women and, 64, 104

  Reagan, Leslie, 127

  Reynolds, Mike, 80, 85, 139

  Right to Life, 102

  Roberts, Ellen, 102. See also Birth Choice

  Roberts, Sarah, 115

  Rodriguez, Delmer, 30

  Rodriguez, Maria Isabel, 26

  Roe v. Wade, 4, 71; allowance for legal abortions if overturned, 120, 122; concept of fetal viability in the right to abort, 121; constitutional basis of, 120–21; focus of abortion-related prosecutions, pre-Roe, 127, 162n20; impact of Roe on choices made, 112; predictions of the political impact of a reversal of, 88–89, 93; pre-Roe mortalities from abortion, 124; pro-life states’ responses to “undue burden test,” 114; timeline of post-Roe rulings, 158–59n11

  Rose Day rallies, 73–74

  Rose Home, 103–5

  Rosen, Mark D., 161n8

  RU-486, 45

  “second victim” exception to abortion prosecutions, 129–30, 131, 133–34

  self-abortion, 45, 64, 119, 126, 128, 162–63nn22–23, 163n32

  Sí a la Vida, 26

  South Carolina, 134

  South Dakota, 158n8, 163n23

  Southern Baptist Convention (SBC): involvement in abortion politics, 72–74; political lobbying, 74; position on abortion in 1973, 70

  Spiropoulos, Andrew, 70, 77

  states and abortion: constitutionality of states’ anti-abortion laws, 114, 120, 122, 158–59n11; pro-life states’ responses to “undue burden test,” 114; state-mandated misinformation about abortion, 145–46n5; states’ enacting of abortion-related laws, 6, 145n5; states’ enforcement of abortion laws, 126, 161n13. See also Oklahoma; United States

  Steele, Kris, 93, 141; legislative record, 91; post-politician ministry, 89–90; tabling of the Personhood Bill, 89, 92

  Sunstein, Cass, 42, 43, 138

  Supreme Court, El Salvador, 21, 27–28, 35

  Supreme Court, US: concept of fetal viability in the right to abort, 121; legal battles over abortion, 4; Planned Parenthood v. Casey, 4, 114, 159n11; pro-life states’ responses to “undue burden test,” 114; Roe decision (see Roe v. Wade); Webster v. Reproductive Health Services, 159n11

  TEEM (The Education and Employment Ministry), 89

  teen pregnancies, 64, 136–37, 165nn43-44

  Texas, 145–46n5

  trisomy 18, 79

  Trump, Donald, 126, 162n16

  Tulsans for Life, 71

  undue burden test, 4, 114

  United States: abortion tourism in, 123; black market in illegal abortions, 125–26; case of a women charged with feticide and child neglect, 132–33, 164n33, 164n36; cases in which the law sees the woman as a criminal, 130–31; claim that banning abortion reduces abortion rates, 137; concept of fetal viability in the right to abort, 121; constitutionality of abortion (see Roe v. Wade); cost factor in illegal abortion, 125; definition of an illegal abortion, 131, 163n32; demographics of women prosecuted for pregnancy-related crimes, 135, 165n42; evidence of increased homogeneity of American communities, 90; focus of abortion-related prosecutions, pre-Roe, 127, 162n20; framing of the potential outcomes of criminalizing abortion, 119; frequency of prosecutions of women for illegal abortions, 128–29, 131; hospital reports of dangerous self-abortion attempts, 126; impact of abortion laws on poor women (see poor women); indirect consequences of a ban, 136–37; lack of a pro-life consensus on what is acceptable, 122; laws against self-abortion, 128, 131, 162–63nn22-23, 163n32; laws regarding patient confidentiality, 47, 152n17, 152n20; moral basis for opposition to abortion, 3, 41, 81, 83–84, 85; moral justification derived from anti-abortion laws, 137; Oklahoma’s abortion laws (see Oklahoma); pattern of law enforcement of abortion regulations, 134; political power of constituent groups, 75; pre-Roe mortalities from abortion, 124; pro-lifers’ positions on punishment for women, 126–27, 142n16; reactions to a post-abortion conviction, 132–33, 164n36; “second victim” exception to abortion prosecutions, 129–30, 131, 133–34; socioeconomic status’ role in the risks of illegal abortion, 124–25; state-mandated misinformation about abortion, 145–46n5; states’ enacting of abortion-related laws, 6, 145n5; states’ enforcement of anti-abortion laws, 126, 161n13; states’ power to allow or ban abortion, 120, 122; targeting of the poor in public hospitals, 66, 156n57; teen pregnancy and, 136–37; unconstitutionality of a complete ban on abortion, 121

  US Supreme Court. See Supreme Court, US

  Utah, 115

  in vitro fertilization, 91

  Wallace, David Foster, 2

  Webster v. Reproductive Health Services, 159n11

  Wilke, John C., 106

  women who killed their children: attitudes toward abortion, 5, 101; Eva’s story, 5–6; sentiments toward motherhood, 5, 6; wrongful convictions after miscarriages, 56, 58, 61, 62, 131, 133; wrongful convictions investigations, 60–62

  World Health Organization (WHO), 45, 150n2, 152n12

  zygote, 41, 150n37

  ABOUT THE AUTHOR

  Michelle Oberman is the Katharine and George Alexander Professor of Law at Santa Clara Univer
sity School of Law and an internationally recognized scholar on the legal and ethical issues surrounding adolescence, pregnancy, and motherhood. She works at the intersection of public health and criminal law, focusing on domestic and international issues affecting women’s reproductive health. Her book When Mothers Kill (2008) won the Outstanding Book Award from the Academy of Criminal Justice Sciences.

  BEACON PRESS

  Boston, Massachusetts

  www.beacon.org

  Beacon Press books

  are published under the auspices of

  the Unitarian Universalist Association of Congregations.

  © 2018 by Michelle Oberman

  All rights reserved

  Some names and other identifying characteristics of people mentioned in this work have been changed to protect their identities.

  Text design and composition by Kim Arney

  Library of Congress Cataloging-in-Publication Data

  Names: Oberman, Michelle, author.

  Title: Her body, our laws : on the front lines of the abortion war, from El Salvador to Oklahoma / Michelle Oberman.

  Description: Boston : Beacon Press, 2018. | Includes bibliographical references and index.

  Identifiers: LCCN 2017041184 (print) | LCCN 2017043325 (ebook) | ISBN 9780807045534 (ebook) | ISBN 9780807045527 (hardback)

  Subjects: LCSH: Abortion—Case studies. | Abortion—Law and legislation—Case studies. | Women drug addicts—Case studies. | Reproductive rights—Case studies. | BISAC: SOCIAL SCIENCE / Abortion & Birth Control. | LAW / Gender & the Law. | HEALTH & FITNESS / Pregnancy & Childbirth.

  Classification: LCC RG734 (ebook) | LCC RG734 .O34 2018 (print) | DDC 362.1988/8—dc23

  LC record available at https://lccn.loc.gov/2017041184