Two important abortion cases will be decided by the Supreme Court this term. In Hill v. Colorado, the Court will rule on the constitutionality of statutory buffer or bubble zones--no-speech zones around abortion clinics and individuals entering clinics, in which even peaceful anti-abortion protests are prohibited. In Stenberg v. Carhart, it will determine the constitutionality of a Nebraska bill prohibiting "partial birth" abortions.
A great deal is at stake in these cases. They will determine the availability of abortion and the legality of common abortion protests, at a time when public support for reproductive choice appears relatively weak. (Support for obnoxious, controversial speech is never strong.)
The abortion rights movement can withstand a loss in the buffer zone case, and probably deserves one. The Colorado law establishes a 100-foot buffer zone around the entrance to any health care facility; within this zone, people are prohibited from coming within eight feet of one another in order to hand out literature or engage in "oral protest, education, or counseling." (Thus, the law establishes an eight-foot bubble zone around individuals entering the clinics.)
In previous cases, the Supreme Court has rightly struck down a 15-foot bubble zone surrounding individuals entering and leaving clinics but has upheld judicial injunctions establishing buffer zones around clinic entrances where protesters have a history of harassing people and blocking their access. The Colorado case, however, involves a statute that restricts all abortion protests, regardless of any particular history of abuse. Effectively assuming that all protests within 100 feet of any clinic and eight feet of any individual will constitute unlawful harassment, Colorado law imposes a clear prior restraint on protected political speech. How do you hand a pamphlet to someone if you're prohibited from coming within eight feet of her? Women and girls seeking abortions have a right not to be criminally harassed or blocked from entering clinics. But they have no right not to be upset, offended, or even traumatized by abortion protests.
Anyway, the right not to be upset seems trivial when compared to the basic right to obtain an abortion, even in the early stages of pregnancy. That right is at risk in the Stenberg case, challenging Nebraska's partial-birth abortion law. To date, 31 states have enacted similar laws that purport to ban late-term, partial-birth abortions. Congress recently passed its third partial-birth ban (and the president is expected to issue his third veto). These laws have been challenged in 21 states, and in 19 states, courts have blocked their enforcement. Partial-birth abortion statutes have been marketed as narrow efforts to ban one particularly gruesome procedure used late in a pregnancy to abort a viable fetus. But in fact, the laws are broadly and vaguely drafted so that they prohibit common procedures used in the first two trimesters of pregnancy, long before fetal viability. If the Court upholds the Nebraska law, it will have effectively reversed Roe v. Wade.
Abortion rights advocates are hopeful that the Nebraska law will fall, but the proliferation of partial-birth bans reflects the vulnerability of the reproductive choice movement. It's not just the threat of a Bush administration and the appointment of two or three anti-abortion justices to the Supreme Court that should worry pro-choicers. Equally sobering is public resistance to recognizing women's moral agency when abortion is at issue.
A 1998 survey by The New York Times found the public quite confused about abortion rights--hesitant to prohibit them outright yet eager to pass judgment on women's choices. Professed public support for abortion in the first trimester is 61 percent; but it drops to 15 percent in the second trimester, and people seem inclined to prohibit abortions, whenever, if women seek them for the "wrong" reasons. (It's worth noting that these were not new findings. A 1989 Times poll showed slightly stronger support for abortion rights but a similar pattern of discomfort with them.)
Putting aside concern about late-term abortions, people appeared most disapproving of women who have abortions because they are ambitious to finish school or pursue their careers. A strong majority, 70 percent of those surveyed by the Times, said they did not believe abortions should be available to women who want to terminate their pregnancies for the sake of their careers; less than half (42 percent) believed that teenage girls should be able to get abortions so that they might finish school. The majority did not consider poverty an excuse for terminating a pregnancy: Only 43 percent said abortions should be available to low-income women who cannot afford more children. (It's not clear how this can be reconciled with general public hostility to "welfare mothers.") There was strong majority support only for women who obtain abortions because their own health is endangered or because of a strong chance of birth defects.
What should we make of this? It suggests that the heart of opposition to abortion rights is not a deep-seated belief that a three- or four-month-old fetus is a person, just like a four-month-old baby. Although 50 percent of people responding to the Times poll agreed that abortion is "the same thing as murdering a child," this view of abortion as murder seems mostly hypothetical. When the great majority of people surveyed believes that abortion is an acceptable choice for women who carry defective fetuses, then the great majority doesn't really consider the fetus a person. Most Americans, after all, would not suggest that parents have the right to kill their disabled children.
Of course, many people find abortions morally troublesome, but mainstream opposition to abortion seems to reflect something else: a refusal to acknowledge that women are autonomous individuals first, not mothers. The abortion debate is not simply about the nature of a human fetus; it is, in large part, about the nature of a woman.
Is it natural for her to put motherhood second--or to choose not to become a mother at all? Is it natural for her to demand the same right to self-determination that fully democratic societies have always granted men? Some feminists have engaged in public breast-beating over abortion, advertising their own moral qualms about it to avoid appearing selfish or morally shallow. But in declaring their own doubts about the morality of abortion, in an effort to gain sympathy for women making hard choices, feminists have probably contributed to public discomfort with abortion rights. They need to address opposition to choice and female autonomy outright and unapologetically.
The feminist movement today, although as fractured and confused as ever about femininity and sexuality, must still fight the battle commenced at Seneca Falls in 1848. There, in the Declaration of Sentiments, the first women's rights advocates called for equal economic rights, equal educational and employment opportunities, equal divorce and child custody laws, and a single standard of sexual behavior, in addition to suffrage. The basis for these demands was the belief that men and women were "invested by the Creator with the same capabilities, and the same consciousness of responsibility for their exercise."
We have, of course, made great progress toward equality since 1848. We've made a lot of progress since 1968. But feminists today face the same challenge--debunking the feminine ideal--that many have ducked for 150 years. Every female politician who runs for office stressing her talents for listening or building consensus, is running on a platform of femininity. Every feminist, and pro-choice activist, who celebrates women's allegedly superior relational skills is celebrating femininity and the maternal ideal and confirming doubts about the moral character of women who choose to terminate their pregnancies.
There is an alternative feminist image of womanhood, outlined by Elizabeth Cady Stanton more than 100 years ago in a justly famous essay, "The Solitude of Self." In this eloquent manifesto, which should guide the pro-choice movement, Stanton, a mother of seven and political organizer who spent most of her life in a crowd, stressed the "individuality of each human soul."
"We come into the world alone, unlike all who have gone before us; we leave it alone, under circumstances peculiar to ourselves," Stanton observed. She asserted that women had to assume responsibility for their own lives, as men did, because "each soul must depend wholly on itself.... No matter how much women prefer to lean, to be protected and supported, nor how much men desire to have them do so, they must make the voyage of life alone... .Who, I ask you, can take, dare take on himself the rights, the duties, the responsibilities of another human soul?"
Is it selfish for women to demand full reproductive choice? Feminists still have to convince people of what Elizabeth Cady Stanton always knew: Demanding your rights is no more selfish than breathing. ¤
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