They Know Best

Safe, Legal, and Unavailable? Abortion Politics in the United States by Melody Rose (CQ Press, 235 pages)

The Supreme Court's recent decision in Gonzales v. Carhart upholding the federal Partial Birth Abortion Ban Act is, make no mistake, a blow to the reproductive rights of American women. Particularly instructive is the way in which Justice Anthony Kennedy's opinion -- attempting to answer the inherently unanswerable question of what legitimate purpose an abortion regulation that protects neither fetal life nor a woman's health could possibly have -- used nakedly sexist premises to justify the ban. (It is a grim irony that Kennedy's celebration of the state's paternalistic regulation of hysterical, flighty women who don't understand their own most fundamental interests comes in the context of an opinion defending a patently irrational law containing consistently illogical reasoning and vacuous emotional rhetoric.) As political scientist Melody Rose's study of abortion politics in the United States demonstrates, however, Kennedy's sexism merely makes explicit what has long been implicit in conservative justifications of abortion regulations.

Rose's book, Safe, Legal, and Unavailable?, should be of considerable interest to everyone concerned about reproductive rights. Readers interested in abortion politics but only casually familiar with the state of abortion law and the evolution of Supreme Court doctrine will learn a great deal. And while experts on the subject will not find much of Rose's analysis novel, they will find her exhaustive, careful compilation of data invaluable. Of the dozens of book about abortion on my bookshelf, this is the one I'm most likely to pull down if there's a fact about the state of abortion law that I need to know.

Her history also sheds considerable light on the implications of last week's ruling. To borrow Rose's language, Kennedy's outrageous opinion was the culmination of recent trends in Supreme Court doctrine, which mark the "fall of the idea that women can make moral decisions regarding their bodies."

The key turning points were the 1989 case Webster v. Reproductive Health Services and the 1992 decision Planned Parenthood v. Casey. While both decisions are remembered as pro-choice victories because they refused to overturn (and, in the latter case, explicitly re-affirmed) Roe v. Wade, they also upheld a series of abortion regulations. Most of these regulations -- in particular the mandatory 24-hour waiting period upheld in Casey -- rely on the same sexist assumptions as Kennedy's opinion in Carhart II. As Justice Stevens noted in his Casey opinion, "there is no evidence that the mandated delay benefits women, or that it is necessary to enable the physician to convey any relevant information to the patient. The mandatory delay thus appears to rest on outmoded and unacceptable assumptions about the decisionmaking capacity of women." While the "undue burden" standard articulated in Casey could theoretically provide a broad protection to a woman's right to choose, when interpreted through a sexist lens it is a near-nullity.

Which brings us to an even more important part of Rose's book. She carefully documents the sporadic and inequitable access that American woman have to abortion services in the United States -- a problem that is getting worse. The number of abortion providers dropped 11 percent between 1996 and 2000 alone; 87 percent of counties do not have an abortion provider. To be sure, some of this problem is an inevitable result of the more limited access that rural Americans have to abortion services, and some of it was a result of the violence against abortion clinics that congressional intervention has addressed with some measure of success. But these practical inequities are worsened rather than curbed by state policies.

Rose documents the array of state laws passed in the wake of Casey (as well as some that followed the crucial 1980 case Harris v. McRae, which upheld Congress' ability to exclude abortions from Medicaid funding). All of the most important state regulations -- waiting periods, parental consent and notification laws, and the exclusion of abortion from general funding for medical services -- affect poor women more than affluent ones and rural women more than those who live in urban areas. Rather than mitigating inevitable inequities in abortion access, then, current state policy exacerbates them.

Moreover, as Rose points out, in some cases state-level statutes don't merely exacerbate pre-existing access inequities but actively create some of their own. Particularly important here are Targeted Regulations of Abortion Providers, or TRAPs. TRAPs involve a wide variety of arbitrary regulations that make it more difficult and expensive to operate abortion clinics -- which poor women in particular rely on, especially in states where abortions are banned in state hospitals. (The lone remaining abortion clinic in Mississippi, for example, is subject to a regulation requiring it to be in an "attractive location," which gives anti-abortion state regulators the ability to extract enormous resources from clinics struggling to provide abortions to poor women. TRAPs have also been used to try to shut down an abortion clinic entirely in Ohio.

These types of regulations will be central to the next decade of abortion litigation, and the consequences of states being given broad latitude could be dire. In light of the reasoning in Gonzales, it is particularly difficult to be optimistic that the Alito-fied Court will scrutinize any of these regulations carefully. The inequities Rose describes, alas, are likely to get worse before they get better.

Some commentators have attempted to downplay the importance of Carhart II, pointing out that the banned D&X procedure represents less than 1 percent of abortions. But this is missing the point. Aside from the fact that, as I have argued before, "one woman forced to endure a greater risk to her health for an utterly silly law is too many," what's most important is the standard that the case articulates and what it portends for the future. The Court's further watering down of the already thin gruel of Casey, and its indication that rank misogyny will be accepted as a justification for state coercion, likely indicate that fewer and fewer women will have reproductive freedom in practice as well as in theory. Given last month's ruling, Rose's book makes for chilling but essential reading.

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