A Finger to the Devil: Abortion, Privacy, and Equality
Olsen, Frances
The Supreme Court decision in Webster v. Reproductive Health Services threatened, infuriated, and activated women throughout the United States.' Even before the decision was finally handed down,...
...Women have for years considered reproductive freedom important enough to risk their lives for...
...to See Frances Olsen, "The Family and the Market: A Study of Ideology and Legal Reform," 96 Harvard Law Review 1495 (1983...
...Jacques Rossiaud, Medieval Prostitution, p. 125 (1988...
...This context reestablishes the connection between birth control and abortion, which helps to counteract the tendency to treat abortion as an isolated act rather than one aspect of a woman's ability to control her reproductive capacity.° Although privacy (like rights in general) is often thought to be an individual matter, a privacy analysis of abortion can also be more "group-based...
...Yet, in so many aspects of life, certainly including sexuality, most women are not allowed to be autonomous individuals or to interact freely and equally with men...
...4 Justice Rehnquist has never seemed to recorigize that in a nation where until recently 100 percent and today more than 88 percent of the sitting Justices of the Supreme Court are men, there is a serious risk that the Court will develop equal protection doctrine that protects women less effectively than it protects men...
...13 Even Chief Justice Rehnquist recognized that restrictive abortion laws have something to do with women's relative lack of power, when he suggested in Webster that in a nation where "more than half [the] population is women" there is little risk that state legislators will "enact abortion regulation[s] reminiscent of the dark ages...
...I have argued elsewhere that the public/private dichotomy is false insofar as the state is implicated in the "private" sphere.m The serious power imbalance within the "private sphere" was created and is perpetuated by state policies in the "public sphere...
...Such an analysis highlights the relationship between abortion restrictions and resistance to the movement for women's equality, and it resonates with the common perception that disputes about gender roles and the appropriate role and status of women lie at the heart of the abortion controversy...
...Beverly Harrison, Our Right to Choose: Toward a New Ethic of Abortion (Beacon Press, 1983), p. 15...
...Changes in this situation have come about through government action, not through legal abdication in the name of "privacy...
...The abortion debate keeps women off balance...
...Untold numbers of women have died in illegal abortions...
...I do not think the arguments about abortion are likely to change much more than the arguments about witches did...
...C. Rosenberg and C. Smith-Rosenberg, pp...
...4 This right to privacy analysis is both appealing and unappealing to women...
...MacKinnon argues that "the legal concept of privacy can and has SUMMER • 1991 • 381 Women and Rights shielded the place of battery, marital rape, and women's exploited labor...
...Rather, the constitutional meaning of equality is something that is created through the process of political struggle...
...That is, privacy doctrine makes abortion a private right to be exercised by women rich enough to buy the medical care they need...
...Although the two approaches need not conflict, I argue that the equality analysis is generally stronger, although it should be expanded in significant and creative ways...
...12 Thornburgh v. American Coll...
...Consider also a woman who is in no position (physically, socially, emotionally, or economically) to have a child, and has a choice between practicing a form of birth control that poses relatively serious long-term health risks to her but is less likely to fail or one that is considerably safer but has a higher failure rate...
...later feminists criticize the entire ideology based on a sharp division or dichotomy between the public and the private...
...Instead of beginning our concern with an individual pregnant female and asking whether she should be allowed to abort rather than carrying her pregnancy to term, begin with women as a group and ask what limits the state may put upon their efforts to control their reproductive capacity and how the state justifies these limits...
...As an analogy, suppose some religious group decided that sleeping under bridges and begging were immoral...
...835, 842-44, 862 n. 73 (1985...
...Instead, they just continued and intensified their struggle, and finally they won so decisively that today witch-burning seems wrongheaded and barbaric...
...382 • DISSENT...
...6 In the original Roe v. Wade case, a husband and wife tried to be plaintiffs on the basis that pregnancy had been determined to be medically inadvisable, as was birth control, and that their "marital happiness" was inhibited by the law forbidding abortion...
...Anti-abortion laws limit women's ability to control their procreation and thus reinforce a situation in which women cannot reasonably enjoy sex and are inhibited from full use of sexuality as a realm of shared pleasure or as an expression of intimacy...
...By inhibiting women more directly and severely than they do men, restrictions on abortion also reinforce the double standard of sexual morality, undermining the notion and reality of woman as sexual agent while they reinforce the notion and reality of women as sex objects...
...The abortion issue is credited with seating Virginia's first elected African-American governor...
...I=1 Notes "[T]he act of forbidding abortion is itself brutal and dehumanizing...
...has preserved the central institutions whereby women are deprived of identity, autonomy, control and self-definition," id...
...330, 338 (1985...
...Women should be free to struggle 380 • DISSENT Women and Rights against the unreasonable conditions that make unwanted pregnancy so common an occurrence...
...8 Privacy doctrine has all too often protected from public scrutiny the abuse of women that takes place within the supposed private realm of family life...
...An additional positive aspect of the privacy analysis is its tendency to place the topic of abortion in the broader context of each individual's interest in controlling his or her own reproductive capacity...
...31-32 (1985...
...The abortion question then becomes whether there is a societal interest in forcing or coercing the woman to choose the more dangerous method of birth control rather than a physically safer form, with early abortion as a back-up option should the safer birth control fail...
...Most people recognize that an egg and sperm do not just become a baby without something else happening— because fertilization is something men can relate to...
...Those in favor of witch-hunting did not change their minds, but the rest of society finally stopped catering to their misogyny...
...By putting women on the defensive regarding their sexuality, anti-abortionists make it more difficult for women to respond effectively to the ways in which their sexual expression is limited and in which they are sexually exploited by men...
...Thus, "privacy" doctrine should be extended to women, even as we pursue efforts to dismantle the false dichotomies underlying it...
...The claim that life begins at conception is nonsense, but it is nonsense with a particular gender bias...
...Abortion restrictions discount women as moral decision makers and further remove from women power over their bodies, a power that is already quite circumscribed...
...Commentators have struggled to get beyond the simple analysis that restrictions on abortion cannot violate the Equal Protection Clause of the Fourteenth Amendment's because they treat women no differently than "similarly-situated" men, because men never become pregnant...
...However, much of privacy doctrine is based on the assumption that as long as the state does not interfere with private life, autonomous individuals will interact freely and equally...
...4 Ibid...
...Thus, a right-toprivacy analysis is also unappealing to women, because women have been "oppressed by [the] violence and sexual aggression that society [has] allow[ed] in the name of [privacy and a right to] sexual freedom...
...Abortions were of little or no legal concern in the Middle Ages...
...17 See David Daube, The Obligation to Procreate (Edinburgh University Press...
...It is misleading to consider gender equality the norm in our society and to expect sexdiscrimination law to take care of the exceptional situations where women are still not treated as equals...
...Because every form of contraception is known sometimes to fail, abortion is a necessary part of controlling one's procreative power...
...The debate about witches may have seemed to some to be deadlocked—with sincere people on both sides of it...
...Women might be better off without a privacy doctrine, but they would seem to be clearly worse off with a privacy doctrine applied in such a sexually discriminatory manner...
...If birth control is constitutionally protected, why should abortion be excluded from constitutional protection...
...2 For instance, Lawrence Tribe, Abortion: The Clash of Absolutes, New York: Norton (1990): Ronald Dworkin, "The Sanctity of Life," The Holmes Lecture, Harvard Law School, September 24, 1990...
...Only through such struggle will either legislators or judges recognize the extent to which restrictions on abortion implicate the role and status of women...
...13 109 S. Ct...
...Some consider abortion even "more private, because the decision involves a woman's SUMMER • 1991 • 377 Women and Rights control not just of her own connections to others, but of the use of her . . . body, and the Constitution recognizes in a variety of ways the special intimacy of a person's connection to her own physical integrity...
...In opposing abortion, one cooperates with the devaluation of women's lives and paves the way for further devaluation of life...
...Perhaps we would still be hanging and burning women today if the opponents of the witch trials had wasted their time searching for "middle ground...
...18 Cf...
...A growing number of legal scholars, especially males who have maintained a generally prochoice position in the past, have been urging a compromise on the abortion issue.' A typical argument is that both sides of the debate have been too strident and that those on the prochoice side should recognize the good faith of their opponents...
...Kenneth Karst, "The Supreme Court, 1976 Term—Foreword: Equal Citizenship Under the Fourteenth Amendment," 91 Harvard Law Review 1, 57-59 (1977...
...Justice Blackmun, dissenting from Webster and expressing his fears for the future, wrote of his fears "for the liberty and equality of . . . women...
...Perhaps the most outrageous effect of the anti-abortion movement is that it puts women into the position of having to fight for something they need rather than want...
...Lawrence Tribe, "The Abortion Funding Conundrum: Inalienable Rights, Affirmative Duties, and the Dilemma of Dependence," 99 Harvard Law Review 330, 335-36 (1985...
...Although opponents of Roe v. Wade hailed Webster as a tremendous victory and predicted an avalanche of restrictive abortion laws, the vast majority of legislative battles since Webster have been won by the prochoice side...
...16 Hodge, "Foeticide, Or Criminal Abortion" in Abortion in Nineteenth Century America, ed...
...Even if "privacy" doctrine may be wrongheaded and have a negative impact upon women generally, the impact could be even worse if men are given privacy rights while women are denied them...
...The poor and their supporters might find themselves having to fight for the right to sleep under bridges and beg in the streets...
...Women create children...
...Such decisions have been characterized as "so important, so intimate and personal, so crucial to the development of personality and sense of moral responsibility, and so closely tied to religious and ethical convictions protected by the First Amendment," that people have the right to decide "for themselves, consulting their own conscience, rather than allowing society to thrust its collective decision on them...
...It is appealing because women have long been "oppressed by [the] moralistic controls society places on women's sexual expression," while society places nearly no controls on men's sexual behavior...
...In the years since Roe v. Wade, the Supreme Court has shown an increasing awareness that the abortion debate has a "gender dimension...
...15 See, e.g., Hirshman, "Bronte, Bloom, and Bork: An Essay on the Moral Education of Judges," 137 University of Pennsylvania Law Review 177 (1988...
...In order to underscore the relationship between abortion and the movement for women's equality, I propose to review two constitutional analyses of abortion, one based on privacy and due process, the other based on equality or equal protection...
...If men are said to have certain rights or immunities because of the private or intimate nature of an activity, the denial of similar rights and immunities to women has a significantly negative impact and social meaning...
...Whether abortions have been legal or not, rich women have always been able to get them privately...
...The arguments on both sides did not change over the centuries "witches" were being burned or up until the time witch-burning finally stopped...
...Frances Olsen, "The Supreme Court, 1988 Term—Comment: Unraveling Compromise" 103 Harvard Law Review 105, 132 (1990...
...As a doctor argued in an 1869 lecture to medical students, the relevant time from which protection of new life should date should not be viability or quickening but conception, because "[i]t is [at conception] only [that] the father can, in any way, exert an influence over his offspring...
...Sylvia Law, "Rethinking Sex and the Constitution," 132 University of Pennsylvania Law Review 955 (1984...
...Ruth Bader Ginsburg, "Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade," 63 North Carolina Law Review 375, 382-86 (1985...
...During the time that Western culture was hanging "witches" there was a public debate about the biblical basis for a belief in witches, and over time this debate may have seemed as strident as people say the abortion debate has become...
...Although women might be better off if society were to recognize the falseness of the public/ private dichotomy and stop using the notion of "privacy" to justify women's continued oppression, women are likely to be worse off if abortion is excluded from the presently existing "privacy" doctrine...
...It is important to see the ways in which anti-abortion restrictions are a result of the devaluation of women, not just a cause of women's inequality...
...9, 23 (1974...
...The anti-abortion movement has forced a similar diversion of resources and has interfered with serious efforts to prevent unwanted pregnancies...
...This denial of standing reinforced the focus on pregnant women wishing to engage in a single act of abortion, rather than seeing abortion as a sometimes necessary part of a woman's control of reproduction...
...Rather than prudently preserving from the devil even a little finger, these people have already given the devil an arm and a leg...
...Ronald Dworkin, for example, has begun discussing what he refers to as the "sanctity of life," and the ambivalence that Lawrence Tribe long expressed about the morality (though not the legality) of abortion has blossomed in his recent book, Abortion: The Clash of Absolutes...
...Lawrence Tribe, "The Abortion Funding Conundrum: Inalienable Rights, Affirmative Duties, and the Dilemma of Dependence," 99 Harvard Law Review, pp...
...If anything is missing from the abortion debate, it is not the kind of "moderation" and accommodation some male academics are calling for, but rather an adequate understanding of the deep-seated hostility toward and fear of women's power that fuels the abortion controversy...
...Shulamith Shahar, The Fourth Estate: A History of Women in the Middle Ages, p. 124 (1983...
...See Frances and Joseph Gies, Marriage and Family in the Middle Ages, p. 304 (1987...
...Moreover, a number of commentators have blamed the privacy rationale of Roe v. Wade for the decision in Harris v. McRae denying public funding of abortion...
...Antiabortion laws treat women differently than men and leave women involuntarily pregnant and thus unable to act in the world as freely as men do...
...Equal protection could require laws to fit the reality of women, to eliminate the vestiges of discrimination against women, and to value women's lives equally with men's...
...The Supreme Court denied them standing on the basis that unless and until the wife actually became pregnant, the couple did not suffer harm or have sufficient interest in the lawsuit...
...If the Court were to overrule its decision in Roe v. Wade, these equal-protection arguments, which have understandably not been fully explored while the courts have invalidated anti-abortion laws on the basis of privacy doctrine, would certainly have to be examined by the Court...
...3 Ronald Dworkin, "The Great Abortion Case," 36 New York Review of Books, June 29, 1989, at 49, 51...
...Moreover, the price of access to abortion is 378 • DISSENT Women and Rights determined by "public" policies to such an extent that there is no analytically clear distinction between a state erecting financial roadblocks that deny women's access to abortion or "merely" refusing to fund abortions for poorer women...
...of Obstetricians and Gynecologists, 476 U.S...
...Unless the Justices would consider it reasonable for the wife to give up her sex life, one must suppose the Court glibly assumed the couple would continue to have sexual intercourse...
...747 (emphasis added) (Blackmun, J., majority opinion...
...Sex-equality doctrine could be developed to require an end to the subordination of women...
...Commentators have shown that anti-abortion laws require of women more sacrifice for procreation than is required of men, even to protect their own children...
...By threatening criminalization of a common and all too necessary practice, anti-abortion pressure denies women the leeway to express the ambivalence and grief they sometimes feel regarding their choices.' 8 The content that the Supreme Court gives to equality is a political question that cannot be intelligently treated as a kind of puzzle to be solved by some clever theorist...
...These efforts would divert meager resources from dealing with the real problems, contribute to misery and degradation, and likely increase homelessness...
...Donald Regan, "Rewriting Roe v. Wade," 77 Michigan Law Review 1569 (1979...
...2 Again, perhaps with gender in mind, the Court referred to "the sphere of liberty that our law guarantees equally to all...
...However critical they are of privacy, many women would be reluctant to abandon the privacy rationale until an alternative route for protecting women's right to abortion is fully in place...
...16 Many who believe that a woman must justify her refusal to allow a fertilized egg to develop into a child would never consider placing any obligation upon men to procreate' or to perpetuate the life of any egg or of their own sperm...
...Not since the witchcraft trials has it been so socially acceptable to express such misogyny...
...Anti-abortion rhetoric and policies are antiwoman in a number of regards...
...at 3067 (Blackmun, J. dissenting) (emphasis added...
...There is growing interest in an equal protection analysis of abortion...
...9 Olsen, Statutory Rape, p. 388...
...We do not gratuitously force people to die for the flag, and we should not gratuitously force people to die for reproductive choice...
...Instead one should recognize anti-abortion laws as part of the systematic oppression and devaluation of women...
...I just hope the day comes soon when women are respected enough so that all people recognize how brutal and barbaric it is to force anyone to continue an unwanted pregnancy...
...Many object to flag-burning in part because they say that people have risked their lives and died for the flag...
...Saint Kieran recovered the woman and when she informed him of her pregnancy, "'the man of God, prompted by zeal for her justice, not wishing that the seed of vipers should quicken, making the sign of the cross on her womb, caused it to empty.' " Salamanca Codex, quoted in David Hurlihy, Medieval Households, pp...
...To think a zygote is a baby is to devalue women's work...
...For example, recent cases suggest that the "promise that a certain private sphere of individual liberty will be kept largely beyond the reach of government . . extends to women as well as to men...
...Alternatively, shall the law force her to abstinence, perhaps damaging or destroying her marriage...
...3 The abortion decision seems to its supporters to be at least as much a private decision as any other the Court has protected...
...Under present conditions, "[w]hen the law of privacy restricts intrusions into intimacy, it bars change in control over that intimacy...
...5 Frances Olsen, "Statutory Rape: A Feminist Critique of Rights Analysis," 63 Texas Law Review 387, 388 (1984...
...The standard constitutional analysis of abortion proceeds in terms of the right to privacy...
...Frances Olsen, "The Myth of State Intervention in the Family," 18 University of Michigan Journal of Law Reform, pp...
...8 Catharine A. MacKinnon, Feminism Unmodified (Cambridge, Harvard University Press, 1987...
...Portions of this essay are drawn from this earlier work...
...If privacy analysis places abortion in the context of birth control generally, equality analysis should place abortion within the broader context of sexual politics...
...That is, while not yet recognizing the full significance that the social and economic inequality between men and women has for abortion law, the Court has begun to acknowledge that abortion law has something to do with the role and status of women...
...In a long series of "privacy" cases the Supreme Court recognized a general right for people to decide certain issues arising from marriage and procreation free of state interference or coercion...
...As long as our society approaches so many legal issues as a question of individual rights (rather than broader notions of community interest) and is generally committed to the public/private distinction, abortion should not be isolated and treated differently...
...But, of course, abortion is a major public health issue...
...11 E.g., MacKinnon, supra...
...at 101, the very traits supposedly protected by the right to privacy...
...The hundred and fifty years of abortion restriction may be the most sustained attempt to control women since the three hundred years of witchcraft trials...
...The Supreme Court decision in Webster v. Reproductive Health Services threatened, infuriated, and activated women throughout the United States.' Even before the decision was finally handed down, thousands rallied in Washington in the largest demonstration the capital had ever seen...
...Legal academics may conclude that more "moderate" approaches will enhance the "integrity" or seeming influence of their own theories, but such considerations do not provide an ethical basis for such a retreat...
...Honnold, "Hirshman, Bronte, and Hawthorne on Law, Abortion, and Society," 137 University of Pennsylvania Law Review 1247, 1248 (1989...
...14 Unless by "dark ages" Rehnquist means the century before Roe v. Wade, his statement is bad history...
...In fact, David Hurlihy reports on an abortion performed in Medieval Ireland by a saint upon a woman whom a petty king had abducted from a convent, married, and impregnated...
...9 Early feminists criticized policies and practices that limited women to the "private sphere...
...but more than that, anti-abortion laws are based upon the subordination of women and broadly reinforce that subordination...
...They have also criticized anti-abortion laws for preventing SUMMER • 1991 • 379 Women and Rights women from enjoying substantive equality with men...
...The Court's privacy analysis appeals to women's interest in equality and freedom, including sexual freedom...
...Throughout much of our history, a white man has been free to rape and otherwise abuse his slaves, servants, wife, and daughters...
...Treating a fetus as essentially equivalent to a child obscures the active role that mothers play in procreation and is yet another example of society's tendency to devalue the work that women do...
...The main alternative route for granting constitutional protection for abortion rights would be through an equal protection analysis...
...The rhetoric's focus on abstract rights and on a characterization of the issue as a conflict between the pregnant woman and the fetus can be considered "masculinist...
...More important, despite the problems with and the debate surrounding privacy doctrine in general, it would be problematic to exclude from the "right to privacy" a woman's interest in choosing to have an abortion...
...Politically, the call to compromise would seem to me to be so disastrous as to raise important questions about the values and goals of anyone claiming to be prochoice but urging compromise at this moment...
...Of course, what they mean is that the flag symbolizes values that people have considered important enough to risk their lives for, and the rest of us should respect the fact that something is so important to some people...
...children do not just happen...
Vol. 38 • July 1991 • No. 3
