Abortion politics: Responds
Shrage, Laurie
BOTH JENNIFER K. BROWN and Rosalind P. Petchesky raise important concerns in their replies to my paper. I will try to sort out where they misunderstand my position and where we just...
...This is much too simple...
...Moreover, even if the public's initial reaction to Roe had more to do with the quickly changing norms of gender and sexuality and less with the practice of feticide, the question of feticide has been forcefully raised by abortion opponents for thirty years and needs to be addressed, not dismissed as disguised misogyny...
...In most such countries, abortion laws were formulated by legislatures rather than courts...
...Like Petchesky, I don't think the general public is necessarily right about when women need abortions...
...Invoking viability reflects an attempt to find a magic line that can demarcate when a woman's right to privacy can be limited by a fetus's rights...
...In any case, some of those who defend the taking of fetal life may support restrictions, in the third and second trimesters, say, just as those who oppose it may support some exceptions...
...We can also try to broaden the public's sympathies through grassroots efforts to educate the public about what women "need...
...The problem with a magic-line approach is that it allows a single factor to determine when the fetus's rights take precedence over the woman's: the developmental stage of the fetus...
...This is the point Sunstein seems to be making...
...That's why abortion rights proponents have to think hard about why there is public support for bans on D&X and then try to formulate policies that might win public support...
...See, memo from Brennan to Blackmun on December 13, 1972 in the Library of Congress...
...Their approach only sustains and intensifies the abortion fight, accomplishing little for the majority of women who have felt the brunt of public resistance to our current policies...
...If the abortions that the majority of the public sympathize with—the ones women "need"—are also the ones that are legal, then perhaps citizens will be more willing to pay for ARGUMENTS them...
...My copy was provided to me by Jane DeHart...
...But Brown sees the viability cutoff for nontherapeutic abortion as Roe's "genius" in coming to terms with the fetus as a developing entity...
...their motives involve "deeply held sexual and gender anxieties...
...BROWN, TOO, ignores how the Roe decision (and especially the viability cutoff) is a source of divisiveness on abortion...
...The laws typically permit therapeutic abortion and typically cut off unrestricted abortion around the end of the first trimester...
...women need substantive rights (to abortion funding and comprehensive health care), not just a right to privacy...
...This is what has happened in the large majority of countries that have legalized abortion...
...Therefore, I disagree with Petchesky that second-trimester restrictions are "beside the point...
...Brown states that I take "it as a given that continuing controversy over abortion shows that Roe v. Wade was wrong...
...This attribution of motives aims at discrediting the arguments of anyone who wishes to see more restrictive abortion laws...
...And it's not a surprise that abortion opponents are targeting a second-trimester procedure, when the public is less approving of abortions...
...By contrast, I think that we need to take our opponents at their word and argue with the reasons they give...
...My discussion of the D&X debate was not meant to support this particular bill, but to show that the public doesn't neatly divide into those who are prochoice and those who are pro-life...
...He thought the viability idea went against the entire thrust of their opinion.' Feminists have worried that "viability" may be a stage reached earlier and earlier, as neonatal technology improves, thus allowing a woman's rights to be further limited...
...Therefore I favor democratic dialogue and compromise on the abortion question, so that all sides get some important concessions...
...Those who favor unrestricted abortion need to defend the taking of fetal life, not avoid the issue by ad hominem attacks...
...politics and a total transformation of the Democratic Party mainstream" will provide women with these rights...
...I will try to sort out where they misunderstand my position and where we just disagree...
...This report was updated in 2002, see www.un.org/ esa/population/publications/abortion/index.htm 80 n DISSENT / Fall 2003...
...3 By contrast, Brown and Petchesky seem to be holding out for total revolution or judicial victory...
...Finally, I agree with Petchesky that we should promote women's empowerment...
...2 And I agree with her that Congress should not decide which medical procedure is used for abortions...
...Brown's discussion of the D&X ban, in particular, demonstrates the unwillingness of the pro-choice camp to consider how some aspects of Roe have fed the abortion controversy...
...Like Brown, Petchesky seems willing to dismiss democratic debate and public opinion on the abortion issue...
...I don't doubt that issues of gender, sexuality, and especially religious authority, have shaped the abortion debate, but Petchesky ignores how forcing social change without building a consensus can polarize people around precisely those issues and lead to organized resistance...
...I agree with Petchesky that earlier opinion polls often "focused on the 'reasons' for abortion, not on gestational age...
...In fact, there are a number of relevant factors: especially whether continuing a pregnancy imposes an unreasonable hardship on the woman...
...She doesn't think that abortion opponents really care about saving fetuses anyway...
...But how are we going to effect this transformation, if not through democratic debate and compromise, through making small and large gains...
...Roe went wrong in one respect: because the justices thought that the privacy right they invoked would not allow any restriction on abortion, they imported another principle, which is the idea of fetal "viability...
...But her discussion ignores what makes this particular abortion procedure controversial: that it is used in mid-pregnancy, and sometimes for abortions women do not "need" for medical or other hardships—abortions that Roe in principle permits...
...Actually, Roe supplied the basic principle: that any restrictions should respect a woman's right to privacy 78 n DISSENT / Fall 2003 Whereas Brown approves of the way the Roe Court discerned "what is right within the legal order we have established for our self-governance," I hold that the Court allowed for too little self-governance by defining the meaning of privacy in terms of the viability cutoff...
...Abortion Policies: A Global Review, Volumes 1, 2, & 3, U.N...
...In other words, the public approves abortions for therapeutic reasons and is less approving when such reasons are absent...
...Why propose new restrictions in the second trimester when second-trimester abortions are barely accessible anyway...
...So, although I agree that we need to analyze and explain the potency of this issue, my analysis includes the legal and political context of Roe...
...But because, in D&X, the fetus's skull is collapsed after pulling it through the cervix, rather than inside the uterus, abortion opponents have used the "partial birth" argument to legally challenge it...
...Roe forced people to endorse one extreme (all nontherapeutic abortions are permitted until viability, when feticide is, in principle, avoidable) or the other (no nontherapeutic abortions are legal), with no room left for the majority who hold the views expressed in the opinion surveys...
...Brown is right that the D&X ban, as it was written, would probably allow other second-trimester abortion procedures to be used, such as D&E (dilation and evacuation...
...he does not necessarily support my compromise proposals, as Petchesky assumes...
...Petchesky thinks, like Brown, that I am unfairly blaming Roe for the current state of affairs over abortion...
...Given the obstacles already faced by women who seek abortions, Petchesky suggests that the focus should be on women's empowerment, not on second-trimester restrictions...
...I'm not willing to wait for a revolution, virtual or otherwise...
...In sum, my main difference with the two respondents is that I do not think that people who oppose second-trimester nontherapeutic abortions are extremists...
...I am proposing that obstacles to abortion based on age or ability to pay be removed, and I am willing to compromise on access to nontherapeutic second-trimester abortions in return for removing these obstacles and giving young and poor women access to abortion in the first trimester (public health insurance, educational outreach, and so on...
...She focuses on the manipulability of opinion data and of public opinion itself...
...But Petchesky is conflating two things, restrictions on abortion and the enforcement of those restrictions...
...One procedure destroys the fetus by a craniotomy, the other by dismemberment...
...For example, Brown contends that the D&X debate is about banning a particular procedure and that my discussion "muddies the issues...
...If the D&X ban holds up, a more comprehensive ban on second-trimester abortion will almost certainly be the next step...
...Democratic political compromise is one avenue for bringing some abortion funding back...
...Petchesky, like many who advocated the repeal of all abortion laws in the past, deplores any legal restrictions on abortion, even in the second and perhaps the third trimesters, that are enforced "through criminal penalties on doctors and women...
...Many of them simply oppose taking human life, even fetal human life...
...When a pregnancy does impose such a hardship, then the woman's rights should take precedence...
...The government can enforce restrictions without resorting to criminal penalties, by promoting independent professional peer review of doctors, for example, with sanctions for doctors who perform questionable or quasi-legal medical procedures...
...She alleges that I hold out the possibility of a balanced approach but offer "no principled basis for achieving it...
...Brown suggests that Roe was already a compromise, because this line could have, and maybe should have, been drawn at birth...
...a woman and her DISSENT / Fall 2003 n 79 ARGUMENTS doctor should be able to decide which procedure is safest (usually D&X...
...Indeed, Brennan, one of the most liberal justices on the Court, worried that allowing states to restrict abortion at fetal viability implied that the woman's rights could be limited, at that stage, without consideration of her health or other hardship factors...
...But what these polls often showed (a point Kristin Luker has made) is that the public is sympathetic to abortions women "need," not ones they "choose...
...But I am not simply proposing new restrictions...
...She argues that nothing short of a "virtual revolution in U.S...
...Population Division (New York: United Nations, 1992, 1993, 1995...
...But we live in a democracy, where public opinion counts even when it is wrong or manipulated...
...Feminists should pay attention to public opinion and try to engage and influence it...
...2 Abortion opponents have no reason to oppose D&X more than D&E...
...Many such women seek second-trimester abortions now only because they were unable to obtain them earlier...
Vol. 50 • September 2003 • No. 4
