Sunday, January 22, 2006

Roe v. Wade Anniversary

Today is the 33rd anniversary of the landmark Roe v. Wade decision of 1973, in which the US Supreme Court, headed by Warren Burger, ruled that a woman, in consultation with her doctor, has a constitutionally protected right to an abortion, before fetal viability.

The Warrantless Wiretapper who presided over 152 state executions while governor of Texas (more than any other governor in recent history), and who's decision to launch a war of regime change in Iraq (also known as Iraqmire) is directly responsible for the deaths of over 2,200 US and coalition servicepeople and tens of thousands of Iraqis noncombatants, proclaimed today "National Sanctity of Human Life Day, 2006."

According to the highly respected Guttmacher Institute, the number of abortion providers has fallen, from around 2400 in 1992 to around 1800 in 2000 (under a pro-choice president, no less), and states enacted 52 laws restricting abortion in 2005 alone. Many states have also seen a drop in abortion providers, and there are populous counties in some red states that have no abortion provider at all.

Correlative with this, points to a study by the National Center for Health Statistics that "about 14 percent of recent births to women 15-44 years of age in 2002 were unwanted at time of conception, an increase from the 9 percent seen for recent births in 1995," and that "61 percent of women 25-44 years of age with less than a high school degree reported having had an unintended birth (either mistimed or unwanted at time of conception), compared with 18 percent of women with college degrees."

Meanwhile, right-wing federal appeals court judge Samuel A. Alito, who has gone on the record with his staunch opposition to the Roe v. Wade decision, is encountering stiffening Democratic opposition to his nomination, with Democratic 2nd in command Senator Dick Durbin refusing to rule out a filibuster. The New York Times ("Judge Alito's Radical Views") and New Republic ("Restraining Order") are running strong editorials opposing the confirmation of Alito, who managed to say about as little that was relevant to his potential job as possible during his recent Senate dumbshow, with the complete complicity of the Senate Republicans and the mainstream media, while conveniently suffering attacks of Alzheimers concerning his membership in the ultraconservative, retrograde Concerned Alumni of Princeton.

While I think there may be enough Democratic votes to sustain a filibuster, the real danger would come immediately upon Alito's, or a similar Borkian originalist's ascension to the nation's highest court, particularly on the issue of women's rights, personal bodily autonomy, and possibly contraceptive rights. It would only take Anthony Kennedy, the Roman Catholic, Republican jurist appointed by Ronald Reagun, to join confirmed right-wingers Antonin Scalia, Clarence Thomas, Chief Justice John Roberts, and Alito or someone like him (all men, no less) in overturning Roe; despite Kennedy's recent judicial decisions falling towards the left side of the legal and ideological spectrum (to the utter enragement of extremists like Phyllis Schlafly and Tom DeLay), there is no guarantee that he would not revert to or vote to enable the far-right quorum.

No one should forget that before Roe v. Wade, as the decision's legal text enumerates, almost every US state (as well as many US territories and the Kingdom of Hawai'i) had enacted anti-abortion laws, some dating as far back as the 1820s and 1830s. Despite the availability of prophylactics, spermicides and contraceptives, and prescription abortifacient drugs, women across the country still need access to safe and legal abortion services. Were Roe to be abolished--even in spite of the basic fact that a majority of Americans support the legal right to abortions--there's no guarantee that many states would not enact anti-abortion laws, let alone enact pro-choice legislation. As we know historically, the absence of pro-choice laws, doesn't guarantee no abortions, it ensures that there will be unsafe, illegal ones.

If you believe in women's right to choose, by which I mean the right of access to legal abortions, the right of women to have abortions without criminal penalties, the right of doctors or other qualified and licensed healthcare providers to provide safe abortions without criminal penalties, and the right to personal bodily autonomy, please contact your elected officials, especially your US Senators, who are set to vote on Samuel Alito, and let them know what you're thinking.


  1. A recent article (I forget where) claims we have focused too much on the supreme court whereas the most active legislation has taken place in local arenas. The supreme court takes a million years to decide to take a case or to rule on it. Meanwhile, states like Missouri and Mississippi (difficult to spell, impossible to live in), have virtually done away with abortion clinics and options).

    And we're all running scared, afraid to say we support abortion. Instead we say we support a woman's right to choose. Not the same thing. One is a medical procedure guided by law the other is a moral obfuscation guided by strangely misogynistic ideas.

  2. Keguro, I don't think it's an either-or proposition. Since federal laws trump all state laws, as in the case of Lawrence v. Texas, one decision can transform, at least in legal terms, the juridical position of millions who have no due process in state courts. You're right that the local situation is critical. (There's a little jingle many children learn to spell the Magnolia State's name--it goes "M-I-crooked letter crooked letter-I-crooked letter crooked letter-I-humpback humpback-I": I think I learned it when I was in grade school.) The Guttmacher Institute site does mention the reduction of clinics in Missouri and Mississippi, which I think is the worst case of all (as often in anything involving civil rights); but without Roe, I can sassure you, Mississippi would not only not have ONE clinic, but would outlaw the procedure completely as soon as it became possible to do so legislatively.

    I don't think we're all running scared. I also think that a women's right to choose is conceptually broader, and connects with what I described as access to contraceptives and abortifacients, and also to personal bodily autonomy, and not just for women. The two cannot be so easily separated, and it's important to emphasize both--the legal medical procedures which are so freighted with religious, political and ideological weight, and the broader conceptual issue, which is not a moral obfuscation (how is it?) guided by what you call "strangely misgonyistic ideas" (please unpack).

  3. Sorry, too many disconnected threads (a common failing). My very cynical side tends to question the "right to choose" as in increasingly abstract phrase, especially because it can be coopted so easily in pro-patriarchal ways. I can choose to live with my abusive boyfriend. I can choose to be beaten. I can choose to be a sex object. I can choose a low-wage job. In some ways, "choice" articulates a very suspect notion of agency, one that ignores structure and history. I suspect we could plot the rhetoric of "choice" to deeply embedded ideas about women's "inability" to choose or make decisions. Women are indecisive. Women cannot choose. So patriarchy says. Now patriarchy says, women can choose. (I realize women fought for this, as well, but I'm being strategic.) And, once we take "choice" as our preferred arena, the right does a wonderful job of using "education" to circumvent choice. After all, it's the biggest advertising mantra of our time: make choices based on the best information available. (Still many threads, but I hope a pattern is emerging.)

    So, I support abortion. Not, I support a woman's right to choose. Abortion is already a choice. Like you, I'm not a fan of either/or propositions. But I am aware of the power of rhetoric to shape political decisions. Abortion is a medical procedure governed by law. It is not a moral choice guided by information. Derrida would tell me, the distinction does not hold. To which I respond, I know it doesn't, but that's besides the strategic, political point.

    (I'm about to go off on a tangent so will take a break and drink tea instead.)

  4. Keguro, no need to apologize about disconnected threads. Not everything is easily linked. These fragments I shore up against my ruins....

    To me the phrase right to choose in the instance of abortion is quite clear. The right to choose to have an abortion, or do whatever else with one's own body as one sees fit, short of suicide. You're spinning the meaning out, but the pro-choice camp has been quite clear for years about this. Just read anything by NARAL, NOW, etc., and they make it clear what they mean.

    I don't buy the pro-patriarchy argument, but maybe I'm missing something here. The right to choose to have an abortion (a positive right) and the right to personal autonomy (a negative right) are quite different from the other kinds of rights you enumerate, which basically involve your reading problematic, oppressive situations, which are historically and socially embedded, as you say, in which agency is often denied, backwards as positive rights. I mean, you can do this if you want, but it doesn't negate the fact that the right to choose an abortion is under threat, does it? Also, who's advocating these "choices," as you articulate them? Progressives? I think not.

    The idea of women as "indecisive" etc. also imposes a particular misogynmistic reading upon women and female agency that's anti-feminist, isn't it? But from various feminist standpoints, do these rather retrograde notions of feminine agency and choice hold water? Also, patriarchy did NOT give women the right to choose, just White supremacists did NOT give Blacks the right to vote, etc. These were rights that we FOUGHT FOR, as you note. So nothing was freely or easily given. In fact, the rhetoric of freedom, powerful as it is is, is just that, at least most of the time, which is why it is so inspiring and so hollow, so easily recycled. Whose freedom? Freedom from what? Freedom to what?

    The right doesn't only "education," they use the power of the state and its organs to compel their views. Take abstinence; even though they propound this, it isn't stopping young people from fucking. In fact, studies have shown that where abstinence education exists and is not paired with other options, students are having MORE sex, and in some cases contracting more STDs.

    I support women's access to safe, legal abortions, and I support their right to choose an abortion or not. Some women don't want to have an abortion. Some do. I support that right, and I want that right to be able to choose to be part of discourse as well. The one doesn't supplant or cancel out the other. Abortion long ago ceased to be only a medical procedure governed by law in the US. It perhaps is that in other nations. But here, it's a part of a much larger site of sociopolitical and ideological contestation. As a result, it has become, for some people, a moral procedure guided by information (or disinformation). And it is, as Derrida would suggest, at the same time a medical procedure. Unwrapping it isn't going to happen anytime soon--at least not in the US, and especially not if Emperor Katrina, who rallied his troops and proclaimed once again his pro-blastula paeans today, has his way.

  5. I have been following this conversation with great interest, because a) I have heard people talk about "The Right to Choose" and Roe v. Wade for the last couple of days; and, b) the use of Derrida and other theoretical apparatuses in the arguement is always interesting to me. It is the choice of words and the language of such "discourses" that both plague and pleasure me I guess. I have not thought much about the anniversary, but the more blogs I visit the more I see its importance and the importance of this national debate.

    J, when you talk about America positioning abortion in a place of great "sociopolitical and ideological constestation", you touch on a piece of the debate that I find essential: How does the "Right to Choose" effect our larger culture? I believe that is where everything stands now, especially after 33 years of it being in place. On the one hand, this debate is not about abortions at all. Women can still have an abortion if it is legal or illegal. The clear benefits of legalization is access to information and a sterile and professional enviroment in order to reduce the risk a woman may face.

    This "access and sterility" law that Roe vs. Wade essentially is to me, is obviously sending the silent message, perceived by the pro-patriarchal crowd, that a culture where abortion is open will lead to certain behaviors. We also have the pretext of "saving a baby's life". Do we not think that women in conservative and pro-patriarchal surrounding have not practiced abortion? And how did they get knocked-up? And what did they think of that life if it was "caused" by a rapist, a servile black buck or a lover that paid a little attention? Maybe I am going out on a limb without facts, but what does history tell us about unwanted pregnancy and what is at stake for the peasant, the housewife, the slave or the queen?

    Anyway . . .

    This law somehow resonnates like a immoral morse code for the Pro Life guys, but was there such a political body before Roe v. Wade or did the Pro Life discourse happen after 1973? And that is where I think the "unpacking" should happen. Are we missing the transformation that has gone on in our culture, because saying I am "Pro Choice." also means "I am willing to do this in 'public'."? Roe v. Wade. gives women the "freedom" to have an abortion in full light. I am very interested in this angle and think this idea of "public" verses "private" is essential. And that applies to so many things . . . The difference for me is the fact a woman may die if she has an abortion in private. If a man holds hands with another man in public or private, or has sex with a man in public or private does not lead to death in an of itself.

    I just don't understand why a specific morality should place people in a "socially dead" space where procedures may or may not be preformed with the best care? Such social deaths in the past have lead to real executions, the result of bleeding and/or infections.

  6. I'm caught up in my own dramas, as they say.

    I guess two theoretical questions guide my probing of the "rhetoric" of choice. And, in many ways, it is a formal issue for me. (Formal, insofar as I support the "right to choose," even as I critique its formulation.)

    One, the relationship of agency to structure. "Right" articulates a certain relationship that rarely, to my mind, obtains in the "real" world. It presumes a model of (almost) unproblematic agency, in which we tend to forget our embededdness within historical structures. When we "affirm" choice, we assign agency often without considering the structures that support or circumscribe it.

    And, of course, the problem is that "rights" are so bound to class. As littlemilk suggets, "choice" means differently across classes. Rich women don't have to think about waiting for two weeks or attending an abortion clinic two states away or even about walking through a crowd of pro-life hate-mongers.

    I focused on the right and education because it's one major angle they have taken in anti-abortion measures. Having women listen to fetal heart monitors, giving them "instructional" pamphlets about abortion procedures and alternatives, coercing through "education." Of course, you're right. Coercive State measures and all.

    Ideologically, I end where many legal scholars stand: abortion as protected under privacy codes is a poor precedent any kind of sex-based rights.

  7. Littlemilk, my response to you is, I think it goes beyond access to information and a sterile environment. It goes to the very issue of the juridical subject (or object) that is created if abortion is outlawed or severely restricted--and based on what I've read over the last few days, several state legislatures, like Indiana's and Alabama's are gearing up for this in anticipation of ScAlito's confirmation to SCOTUS--women may have an abortion, but they could be sent to jail (if they don't die) in certain places, as would the person performing the abortion. So the idea that women could have an abortion if it were legal or illegal is true in an abstract sense, but in real terms, I'm not so sure. The issue of criminalization of the woman's attempt to end her pregnancy seems to be getting lost. Also, I don't doubt that if abortion were criminalized, abortifacient drugs, and in some places contraceptives, would also be criminalized. Don't think it couldn't happen; I mean, just look at the rapid shift in government power since September 11, 2001, under the pretext of national security.

    In terms of the silent message, I'm not sure it's silent at all; is it? We have the pro-patriarchal crowd saying that access to condoms leads to more sex (which doesn't square with scientific studies), that more information about sexual health leads to more sex (which doesn't square with scientific studies), that the promotion of abstinence, without repressive punitive laws, leads to less sex (which doesn't square with scientific studies). The messages are hardly silent, and I don't think they derive solely from the "access and sterility" laws, which in any case are already severely constrained in a number of states. Women in conservative spaces--let's take Saudi Arabia--not only might die from a botched abortion, but could be killed if found to have had one. Which is to say, the penalty for abortion is death--not just a potential outcome from a non-sterile and safe abortion. So the juridical subject's rights have changed, for, to put it mildly, the worse. Obviously, women still have abortions. They get pregnant because they have sex; even extreme penalties--such as honor killings, to which the state is indifferent, or state-sanctioned stonings and murders--may not prevent people from having sex, but they severely constrain and mold their behavior. There are anti-abortionist women who've had abortions, even while holding anti-abortionist views, but this doesn't change the fact that the legal right and the juridical subject it creates are not utterly important.

    As far as the historicization of pregnancy, of course it depends upon what and where. Specifics are key. If you live in a society in which more children is an economic necessity, where they provide social and cultural, as well as economic capital, etc. (and such societies are often poor and patriarchal), then the issue of unwanted pregnancy may be moot, or less of an issue.

    I think there was a political body of anti-abortionists before Roe v. Wade, but if I may borrow from Foucault, the production of an anti-abortionist discourse very likely came into play as the procedure itself came to be described and written into the discourse, for political, economic, legal, and other reasons. There are a number of abortifacient drugs to be found and derived in nature; I know that enslaved women, for example, would brew concoctions to produce abortions. Given the economic value of the slave body to the slaveholding society, this would have provoked severe sanctions if discovered (even if, simultaneously, the Black person and body were not considered human and equal under the law, etc.). Does this make sense? So while we place extraordinary value and pressure on Roe v. Wade, there are precedent historical moments where the issue of abortion aroused excessive concern, for various reasons. (The text of Roe also discusses the historical context of fetal viability, "live birth," and various religious traditions, including Judaism, Roman Catholicism and Protestantism.) Texas has had an abortion law on the books, according to the text of Roe v. Wade, since 1859, yet as of 2006 has no law against sex with livestock, though this was considered to be a taboo and juridically penalizable event from Biblical times, and was criminalized from the Colonial period in numerous states.

    Roe assures that up to "viability" a woman cannot be sent to jail for having an abortion, nor convicted of a capital crime for doing so; and that her abortion provider cannot be sent to jail or convicted of capital crimes) for performing the abortion. It doesn't guarantee a safe or clean abortion. It doesn't guarantee freedom from harassment, freedom of easy or affordable access, etc. That discourse has arise around Roe just as the anti-abortion discourse has. But given that 36 states or territories had outlawed the practice before the Enactment of the 14th Amendment, some sort of anti-abortion discourse, written into statutory law, existed. In terms of the issue of the public, the law merely says that the procedure may be performed and cannot be criminalized. So this does affirms a public right, at least it affirms the right to an action which cannot be criminalized if performed publicly (or privately, but with proper knowledge and/or medical care--privacy doesn't always mean substandard or equal death, and here the issues of class, finances, access, etc. enter the picture.)

    I agree with you on the specific morality, but shouldn't that be taken up with the moralists? Because it is their perspective, which they hope not simply to effect through acculturation, but to enact into law, which can have the gravest consequences? Or is that wrong? And "social deaths" still lead to executions; just look at the roster of inmates on death row, the racial and class disparities, the role of police and prosecutorial negligence or incompetence, and so on.

    Keguro, I think I've got where you're coming from.

    Here's what I'm thinking, however. First. I agree with you about the relationship of agency to structure (and institutions, politically and socially mediate spaces, etc.). While you're correct about "right," I'm talking specifically about "a right," which is to say a concrete, legally validated and legimated positive (or negative) means or vector of agency, in the real world, in real time. Not an abstraction. Which is to say, under legal pressure, it holds up and cannot be invalidated or erased. Does this make sense? I'm not assuming unproblematic agency, but as I said, given that abortion is not simply a medical procedure (or a medico-physiological procedure, since human beings conducted abortions before the invention of what we term "medicine"), but a highly problematized site, very much embedded in historical, politically (as well as ideologically) and socially mediated structures. In an ideal state or as an abstraction, of course, abortion is something else. Affirming choice does not have to cancel all of this out. I don't understand why this conceptual leap is necessary, but perhaps I'm just obtuse in this regard.

    Rights are not only bound to class, but to race, ethnicity, gender, and so on. They are religiously bound, regionally bound, etc. No, rich women do not have to think about waiting for two weeks--if a woman is rich enough and wants an abortion, she has a range of options. But the fact remains that if abortion as a procedure is outlawed or, if as some of the statements issued yesterday are to be believed, women receiving abortions could be jailed, doctors (or anyone) performing abortions could receive hard labor in Alabama or 20 years imprisonment in Rhode Island (the Alabama penalty is not that far-fetched), then the issue of several days travel to a clinic or a walk through a crowd of hateful anti-abortionists (I refuse to use that perverse term "pro-life" without quotes, since those people usually fetishize blastulas and care little for living, breathing human beings) has to be reframed. Doesn't it?

    The right has taken education as their angle because they have not been able to outlaw abortion outright, so they use other coercive, paternalistic means--yet the right to choose, to right to ACT on one's own body, is what they seek ultimately to prevent, not even by persuasion, but by state coercion; but the minute they have the more draconian option, education will become less of an issue (except among the extremely religious). Because they will be able to use the force of the state to coerce pregnancies, and penalize--through extreme means, it appears--those who have abortions and those who perform them. There will be less need to force women to have sonograms etc. when the other option is a long jail sentence (or worse)--or in the case of botched and unsafe abortions, potentially death to the mother. Again, perhaps I'm missing something here.

    I have zero legal training whatsoever, so I can't speak to what ground legal scholars stand on. In terms of abortion as protected under privacy codes, or rather under a right to privacy and personal autonomy, I would suggest that though these two negative rights not enumerated per se in the Constitution, the text of the 9th Amendment, which says quite clearly "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people," seems clear enough to me. Under what other measures would sex-based rights, under which you list abortion, be assured? As positive rights enumerated under subsequent amendments? It's not going to happen, not in the United States, at least not anytime soon. Perhaps under certain states' constitutional amendments, but then what about those states that outlaw it and its performance? The class (and related) arguments don't go away.