Within minutes of the Supreme Court's April 18 ruling in Gonzalez v. Carhart, which upheld the federal Partial Birth Abortion Ban Act, emails poured into my inbox from feminist and pro-choice organizations.
NARAL Pro-Choice America asked me to forward my friends a message starting, "I'm sending you an email because I want you to help protect privacy and a woman's right to choose."
NOW's missive reminded me that the organization had fought Justices Samuel Alito's and John Roberts' confirmations. It spent a precious sentence on the attempted filibuster and pointed out that Roberts lied about his commitment to the principle of stare decisis, or respect for precedent.
From Planned Parenthood came: "We are outraged by this dangerous intrusion into the private relationships between a woman and her doctor. It is simply unconscionable for politicians to masquerade as doctors, dictating what is 'best' for women's health and safety, as though they know more about medicine than skilled health-care professionals."
Privacy? Filibuster? Skilled health-care professionals?
Are these words to mobilize the rage of women as the state seizes control of our bodies?
Health-care professionals have, of course, played a starring role in the fight over "partial-birth abortion." On the first round of appeals, doctors helped persuade three lower courts and, seven years ago, the Supreme Court itself to overturn the ban. Not only did the statute neglect to make an exception to safeguard the pregnant woman's health, but the term "partial-birth abortion" was so vague as to include, according to Dr. Leroy Carhart (of the original Nebraska challenge), as many as 21 methods of terminating pregnancies as early as 12 weeks. Doctors could never be sure whether they were breaking the law.
This time, weighing the opinion of such "prominent medical organizations" as the Christian Medical and Dental Associations against those of the American College of Obstetricians and Gynecologists and the American Medical Association, the majority concluded that a health exception was not needed, because there is widespread "medical uncertainty" over whether the banned procedure, intact dilation and extraction, is ever "truly necessary."
This alleged uncertainty is about as significant among physicians as the doubts about evolution or global warming are among biologists or climatologists.
For the Roberts court - like the Bush administration that installed it and the Rehnquist court that installed the Bush Administration - politics trumped fact. Still, it was politics dressed up as fact, and disdain for science dressed up as respect. Writing the majority opinion, Justice Anthony Kennedy even expressed faith that "the medical profession" would "find different and less shocking methods to abort the fetus in the second trimester, thereby accommodating legislative demand."
Apparently physicians' first duty is not to "do no harm" to the patient, but to do no harm to the delicate sensitivities of Congress.
It's no surprise that the abortion debate has circled again and again around doctors' opinions and prerogatives. The medical profession - which a century ago seized control of contraception and childbirth from midwives and other female lay practitioners - was instrumental in outlawing abortion. But doctors were also central to bringing it back. Physicians gave some of the most compelling testimony in Roe v. Wade, speaking of women rushed to their hospitals bleeding from back-alley abortions - and of the 5000 a year who didn't make it. Some of these doctors understood that their profession was implicated in those deaths, since the only way a woman could obtain a "therapeutic" abortion was to submit to interrogation by a hospital board and prove that pregnancy or childbirth would endanger her physical or mental health. Authorization often hinged on a bizarre combination of her fitness to plead rationally and her unfitness to mother - and on the whims of the men on the board.
This system was undone by Roe v. Wade, but the ruling did not eliminate medical paternalism in the law. The Court recognized a right of privacy, "broad enough to encompass a woman's decision whether or not to terminate her pregnancy." The forceful and moving opinion, written by Harry Blackmun, enumerated many possible harms resulting from having a child, including a "distressful life and future." But the justices also spoke for a compelling state interest in the regulation of medical abortion. The woman's right of privacy, therefore, would be exercised "in consultation" with "her responsible physician."
In Carhart, Kennedy employs the latest anti-choice tactic: He twists the feminist rhetoric of harm to argue that abortion, not maternity, leads to a distressful life or future. He recasts Roe's doctor-patient collaboration as a relationship between trickster and victim and depicts the ordinary preoperative practice of withholding the gruesome details of the impending procedure as a subterfuge practiced on vulnerable, naive women. Seen this way, the ban on a particularly gory procedure, of the particulars of which few patients are informed, does not deny women rights - it saves them untold pain. The "partial birth abortion" ban, in other words, is good for women, or, as he calls us, "mothers."
"The Act also recognizes that respect for human life finds an ultimate expression in a mother's love for her child," Kennedy writes. "It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming human form."
Justice Ruth Bader Ginsberg, writing the dissent, shoots back in fury. Citing cases that she successfully argued and in which, as Justice, she wrote the majority opinion, she zeroes in on the sexism inherent in Kennedy's use of the word mother and reiterates the real meaning of Roe and the subsequent 30 years of jurisprudence on abortion.
"'There was a time, not so long ago,' when women were 'regarded as the center of home and family life, with attendant special responsibilities that precluded full and independent legal status under the Constitution,'" she writes. "Women, it is now acknowledged, have the talent, capacity, and right 'to participate equally in the economic and social life of the Nation.' Their ability to realize their full potential . . . is intimately connected to 'their ability to control their reproductive lives.'"
Make no mistake, Ginsberg declares. The defense of abortion rights is not about "some generalized notion of privacy." At stake is "a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature."
Pro-choice Constitutional scholars have long lamented that Roe was decided on this flimsy principle of privacy. Some also regret that the court extrapolated that right mainly from the Fourteenth Amendment's guarantees of personal liberty and equal protection under law. To many radical feminists, including me, the decriminalization of abortion went far beyond equal protection, even beyond its protection from undue state restriction on life and liberty. To us, it was an act more akin to what the Thirteenth Amendment did: abolish slavery and involuntary servitude. In our first action in 1979, my feminist guerrilla theater group No More Nice Girls dressed in black, stuffed pillows under our gowns to appear pregnant, and wrapped ourselves in chains. Our banner read: "Forced Pregnancy = Slavery."
Carhart is not just about a particular medical procedure. It is not about doctors' ability to practice medicine - even to safeguard women's health - unrestrained by know-nothing statutes. It is a threat not just to Constitutional rights but to the most fundamental of human rights: Each person owns her own body.
This ruling is the latest salvo by a state that imprisons two million of its people, indefinitely detains and tortures a vaguely defined "enemy," and wastes hundreds of Iraqi lives a day.
It strengthens the terrifying hold of an administration - and its court - on the bodies of others. Or, should I say, of Others: "aliens," Muslims, poor people of color, and women.
In the coming fight for abortion, women must claim not just the autonomy of doctors or patients, but the liberty of women. We must defend not just our health but our lives. Jurists are confined to building upon precedent. Radicals envision the future. This time, we must demand not privacy but freedom.
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