Where We're at, 40 Years After Roe v. Wade: Many More Right Wingers Have Abortion as Single Issue, Than Do Liberals
Forty years ago today, the Supreme Court issued a ruling in the case of Roe v Wade (and in a less heralded decision, Doe v Bolton, which struck down Georgia's highly restrictive aboriton law). The 7-2 decision established that the right to privacy under the due process clause of the 14th Amendment extended to a woman's choice to terminate a pregnancy, but that the right also had to be balanced against states' legitimate interest in regulating the procedure.
Roe certainly didn't settle the matter, as four decades of political agitation -- and no small number of violent incidents -- have demonstrated.
On Roe's 40th birthday, Tracy Weitz, a medical sociologist at UC Berkeley's Bixby Center for Global Reproductive Health, spoke to AlterNet about the state of reproductive rights in the U.S. Below is an edited transcript of our interview.
Joshua Holland: ...In 1992, again according to Pew, 60 percent of Americans said that they did not want Roe overturned. Eleven years later in 2003, it was 62 percent. Now, 10 years after that, it’s 63 percent. So it’s creeping up, support for Roe, but it’s pretty stable.
Now, just 29 percent of the American population favor overturning Roe, the rest are unsure, or didn’t answer. We hear so much about the forced childbirth movement, or anti-choicers if you prefer. It seems like most of society has moved past this. How do they get so much noise from that small community?
TW: I think they got a lot of noise in part because they have been able to mobilize single-issue voters and single-issue donors to, in a sense, require that Republican candidates take a very strong stance against abortion, whether or not they actually personally believe that. There is a lot of power in electoral politics around abortion that doesn’t translate from an interest of the general public, but it does translate from what are very clearly single-issue voters and single-issue donors. I think that’s why there is this disproportionate relationship between the power they have in government and the power they have in public opinion, or in general life.
JH: According to NARAL, which is an abortion rights organization, there are many more single-issue anti-choice voters than there are single-issue pro-choice voters. Your typical pro-choice voter is going to make her decision based on a number of different issues.
TW: It’s what’s been called the "intensity gap."
What is the state of abortion access in this country today, 40 years after Roe? It seems the new strategy is to kind of regulate away abortion clinics, in conservative states anyway. And it’s harder to get people motivated over regulation, than say laws banning abortion. Your view?
TW: Yeah, I think that's right on the money. In 1992, the Supreme Court allowed states to begin to regulate abortion and in doing so to explicitly express their disapproval of abortion. Since then, they have implemented hundreds of abortion laws that are anything from requiring women to wait 24 to 48 hours before having an abortion, to requiring a facility to have ceilings that are so high and hallways that are so wide and those are particularly hard. To most people, they may sound reasonable, so you have to spend a lot of time explaining to people why that may not be reasonable and that’s a hard place when you are trying to get people to care about things that aren’t on their daily agenda.
JH: You know a great example of that is, in states where they have an abortion clinic but no providers and have to fly in providers, they will put in a regulation that a doctor has to have admitting privileges at the local hospital. On its face, this seems rational -- why shouldn’t states require that doctors be able to admit patients when things go badly? It is an attempt to legislate away abortion through a back door, a great example of your point.
Now I know good liberals who support abortion rights and also believe that Roe was bad law. Roe followed Griswold v Connecticut, where the court struck down a law banning contraceptives, and in that case, which first established a right to privacy, Justice William Douglas famously wrote that the right emanated from the "penumbra" of other rights. An argument that one hears sometimes is that if the courts hadn’t intervened and if abortion rights were won in legislatures, instead of in the courts, it wouldn’t have caused the same kind of backlash. What’s your view of this argument?
TW: I think it’s wishful thinking to rewrite history. I mean I think that the states were moving potentially in the direction of liberalizing anti-abortion laws, reforming anti-abortion laws, but not repealing anti-abortion laws. There were only four states at the time of Roe that actually had abortion laws very similar to the Roe framework. Others required and were starting to move in the direction where abortion was allowable for rape and incest. It was allowable to save the life of the pregnant woman, but there really wasn’t a trajectory towards repeal in the way that people want to believe there was. In part, that's because it’s a very hard issue to try --just as it is today -- to try to get people to stand up for. I think that the idea that we would have gotten to a place where society would have accepted it, we probably would have in some states, but, just as I think marriage equality will move across a certain number of states and then it will stall. Desegregation moved across a number of states and stalled. It eventually was up to the courts to say this is a civil liberty and it should be extended to all people.
I think the backlash happens when there is social change, whether that social change comes from the courts, or comes from society. I think the question about whether or not it would have eventually led in that direction -- I think that’s just a rewriting of history and we wanted to believe that we could come to a compromise on the abortion issue without actually having to do the work that we still have to do, which is to say, what is the conflict of abortion about? It’s not about abortion. It’s about the status of women in society, it’s about maternity, it’s about what we think about humanity. It’s about all of those things and that fight was going to happen whether or not the court had decided Roe.
JH: It’s a little bit like the argument we sometimes hear that civil rights legislation was not necessary, because eventually the private sector would have realized that it was in its own narrow economic interest to serve all comers. A thin bit of historical revisionism, I think.
TW: Right, and I think that’s like people wanting to believe that there would have been a different outcome on abortion if we had just done a different strategy.
JH: Tracy, what do you make of the discourse around abortion? You know we have become accustomed to abortion being compared with infanticide. It doesn’t shock us anymore to hear people talking about "killing babies," but when you stop and think about it, this is just outrageous. Just completely beyond the pale and it’s discourse I would suggest is indirectly, or directly responsible for abortion doctors being murdered and clinics being bombed, because logically I would consider killing someone to prevent them from murdering a child. It just seems like an ethical imperative. Is there any other issue where one side accuses the other of killing babies and nobody even bats an eye about it?
TW: I think that when rhetoric gets overly heated it does lead in the direction of people who are living on the margins acting in very awful ways. I do think the targeting, the direct targeting and killing of abortion providers is related to how hostile we’ve allowed the rhetoric to become. I think what’s interesting -- and you were asking earlier about whether Roe was poorly decided -- is one critique of the Roe decision's privacy frame. The second critique of the Roe decision is the extent to which it made it seem like abortion is about doctors and not about women. Doctors have the authority to do abortions under the Roe decision. We forget that it’s really women who have abortions. So if our society were to say, "Who is murdering babies?" It really would need to be that it’s women who are doing it.
That kind of hostility towards women I think exposes a different level of what’s really at stake in this. We’ve allowed the hostility to be transferred to doctors and then they’ve been targeted for direct action. I think we need to remember that ultimately it’s women who make decisions about abortion. It’s women who have abortions and it’s women who decide the fate of any individual fetus. I think if we could return the conversation to that, to remember who is making the abortion decision, then I think that some of the polarization declines, because people have a lot more empathy and sympathy for women’s individual circumstances. It brings, I think, the nuance and the context back into the discussion, which doesn’t happen when it is focused solely on either the courts making abortion legal, or doctors are killing babies.
JH: I want to talk a little bit about the discourse on the other side as well. We both know the reality of abortion in this country. The overwhelming majority occur early, in the first trimester. Is it 88 percent, or something like that?
TW: It's over 90 percent.
JH: Over 90 percent. And what share of later-stage abortions are due to complications that threaten the life, or the health of a woman?
TW: We don’t actually know the answer to that question. Only about 1.3 percent of abortions occur after the 20th week and we really don’t know exactly what causes that. Our research here suggests that it is sort of a confluence of experiences. Sometimes it’s what develops medically in a pregnant woman. Sometimes it’s what develops in the fetus -- poor development of the fetus. It can also be poverty. It can be a series of -- look, say a woman doesn’t diagnose her pregnancy until she is in the second trimester, then she tries to find a clinic. Then she tries to find the money. She can’t find the money and then suddenly she is over the 20th week. So there are medical reasons why women end up that way and there are social reasons why women end up that way.
I think what’s so ironic is that the very laws that are being passed now that make abortion harder to obtain, mean more women get pushed into that category. If we really cared about later abortion we would do a lot more to increase access to early abortion, but we’re going in the opposite direction unfortunately.
JH: The law of unintended consequences. So 1.3 percent are after 20 weeks. One other question that I have -- and I guess that was a weird set-up -- but I really want to ask about pro-choice people criticizing anti-choice people for not respecting exceptions for rape and incest. When you focus on the rape and incest angle, are you not implying that there is something wrong with getting an abortion unless you were raped, or are a victim of incest?
TW: Yeah, I mean I absolutely agree with you. I think we on the pro-choice side have really set up a victim-based narrative that means some abortions are more justified than others. The less involved a women is in the conception, in getting pregnant, the more we seem to think her abortion is legitimate. I do think it sets up a lot of stigma towards the majority of women who have abortions, not because they are the victims of sexual assault, but because they don’t want to have a child at the time -- they can’t afford a child at the time, this isn’t the right relationship, they have other things they want to pursue in their life. I think we have contributed on the pro-choice side to abortion stigma in ways we haven’t yet accepted responsibility for.
JH: Some of the redder states have passed laws that clearly violate Roe -- Roe and subsequent case law holds that a state can ban abortions after viability, after the fetus can live outside the womb. We’re seeing these "fetal personhood" bills that basically ban abortion entirely.
Under the Civil Rights Act, if you challenge a law on civil rights grounds and win, the state pays your lawyers. So we have this amazing irony, that these deep-red states that want to defund Planned Parenthood end up paying Planned Parenthood’s lawyers millions of dollars. This happens all the time.
My question is this: are abortion rights advocates wary of pushing one of these cases to a Supreme Court that they see as increasingly activist and increasingly right-leaning? Are they wary of actually confronting these laws?
TW: I think so. I mean there were a number of states where they banned abortion after 20 weeks and initially those laws were not challenged and one of the reasons was, of course, those states didn’t have providers who performed abortions that late so there was little impact on women and there was concern that this particular Supreme Court, in particular Justice Kennedy, who was very hostile in writing the decision upholding the Partial Birth Abortion Ban Act of 2003, that he will be sympathetic to these laws.
Unfortunately those laws then also got passed in states like Arizona and Georgia, where there were providers and where there was real potential impact on women’s access to care. Those have both been challenged. I think they had to be challenged, because they are unconstitutional and because they really would have an effect on women’s health, but I do think that the lawyers are wary that a bad decision may be coming.
JH: I think everybody needs to remember that we are not discussing whether abortion will be a part of the fabric of our society or not. When you talk about legality, all you are talking about is whether it will be a criminal thing, done in back alleys, or not, because we’ve always had abortion. The alternative to legal abortion is having wealthy women leave the country for an abortion and poor women being butchered in back alleys. That’s what the debate is about.
TW: There is a new study that was just released this week by Lynn Paltrow that looked at what’s happening in this country around the incarceration of women and prosecution of women who are having stillbirths, who are having miscarriages and suggesting that there would be police action against women who would engage in having an abortion illegally.
So the very real risk that this becomes an economically stratified access issue, that is enforced by pretty hardcore punishment and as you say we have evidence all over the world that legality and use are not related. There is no relationship whether the law exists, or doesn’t exist in the country, abortion exists in every country in the world. The question is whether it is safe, whether or not it’s economically stratified, that’s really what the law makes a difference with.
JH: Remember, these people pushing to criminalize abortion are people who claim to believe in limited government.
TW: Yes. And I appreciate having this conversation on the 40th anniversary of Roe. As you say, I think it is important to remember that abortion existed before Roe and it will exist no matter what happens. The question, as a society, is whether or not we make it legal so it’s safe and available across the socioeconomic strata, and whether or not we respect women in making those decisions. That's where we get to decide.