Applications Of Feminist Legal Theory

B. Abortion

B. Abortion Introduction SOCIAL CONTROL of women's reproductive capacity has been a central concern of the women's movement. Framing the issue as women's right "to control their own bodies ,"l feminists today regard reproductive control as a prerequisite to personal and political empowerment.2 In contrast, abortion rights were not a concern of nineteenthcentury feminists, who worried instead about death from childbirth.3 This distinguishes abortion from other feminist concerns (such as battering, prostitution, and employment ) which are shared by historical and contemporary feminists. By 1970 abortion was gaining prominence as a feminist issue. Feminists advocated access to safe and legal abortion and condemned the disproportionate impact of abortion restrictions on poor women and women of color.4 Despite an initial concern with the broader range of reproductive rights (contraception and sterilization abuse, as well as abortion),5 feminist reformers subsequently concentrated primarily on abortion.6 Liberal feminists in particular targeted abortion rights. At the first national conference , the National Organization for Women passed a resolution supporting "[t] he right ofwomen to control their own reproductive lives by removing from the penal code laws limiting access to contraceptive information and devices, and by repealing penal laws governing abortion."7 Not all feminists were supportive. Some resigned in protest, worrying that NOW's advocacy of abortion would jeopardize the organization.8 Nonetheless, the abortion rights movement gathered momentum. Radical feminists joined liberal feminists.9 Early feminist theory provided a rights-based claim for the political agenda. 1O And, throughout the 1960s, grassroots organizations established abortion referral services in states where abortion was illegal as well as in those few states where it was legal.I I 931 Copyrighted Material 932 I ABORTION Feminists also lobbied for repeal of abortion restrictions. The 1969 AMA Convention in New York was surrounded by picketers from the women's movement wielding signs and leaflets "demanding that doctors sign a petition for repeal." Feminists from NOW and other women's liberation groups invaded the AMA meeting, as well as courtrooms, legislative hearing rooms, district attorneys' offices, and the streets ... and provided the most visible external pressure for change in the abortion laws.12 Although feminists predominated in the abortion reform movement, other influences were apparent as well.13 A distinct reproductive rights movement formed, influenced by Lawrence Lader, author of a book advocating abortion repeaLl4 Clergy also provided support in the form ofreferral services.15 Nonfeminist organizations, such as the American Medical Association, American College of Obstetricians and Gynecologists, American Medical Women's Association, American Public Health Association, Group for the Advancement ofPsychiatry, and Planned Parenthood-World Population,16 also advocated abortion reform. Another call for reform was emerging in legal channels. The American Law Institute (ALI) proposed a Model Penal Code in 1959 with new abortion provisions,17 liberalizing abortion for pregnancies resulting from rape or incest, for those involving a deformed fetus, and for those whose continuation would impair the mother's mental or physical health ("therapeutic abortions").18 During the 1960s, birth defects caused by thalidomide and rubella19 contributed to support for the ALI proposals. Colorado, North Carolina, and California enacted the first reforms in 1967 premised on the ALI provisions.2o In 1967 "twenty-eight state legislatures considered liberalization bills; by 1970 twelve had passed them. "21 The ALI proposals , however, resulted in only limited reform.22 Ironically, some ensuing statutory revisions served to strengthen restrictions by imposing onerous procedural requirements on abortion. Other revisions mandated residency requirements and consent by husbands or parents.23 Such provisions significantly impeded access to abortion services.24 With the realization of the limited nature of reform, radical and socialist feminists instead began advocating repeaL25 They opposed the distinction between therapeutic and elective abortions, and campaigned for abortion for allwomen.26 Repeal was most successful in Hawaii and New York, the first states to eliminate their laws in 1970.27 The struggle in New York was "particularly fierce" (repeal legislation passing by one vote), pitting conservatives and the religious right against feminists.28 Other states followed.29 With litigators challenging restrictive laws,3o the stage was set for the famous Supreme Court decision in 1973. Roe and Its Mtennath The abortion law challenged in Roe v. Wade31 had its origins in nineteenth-<:entury AngloAmerican prohibitions.32 Parliament first enacted legislation (Lord Ellenborough's Copyrighted Material Introduction I 933 Act)33 in 1803 penalizing abortion before "quickening" (the moment when fetal movement became perceptible). American jurisdictions began enacting restrictive statutes somewhat later, from 1821 to 1841.34 Nineteenth-century physicians actively supported abortion restrictions.35 In 1859, the fledgling American Medical Association (AMA) began an aggressive campaign opposing abortion before quickening.36 "Between 1860 and 1880 the regular physicians' campaign against abortion in the United States produced the most important burst of anti-abortion legislation in the nation's history."37 Forty states enacted statutes during this period.38 Physicians were motivated, Mohr explains, by a desire to end competition from nonmedical practitioners.39 Additionally, Petchesky suggests that physicians desired "to establish an ideological hegemony that would give them an exclusive authority over their principal c1iente1e-upper- and middle-class married women."40 Petchesky adds that the AMA utilized moral, rather than medical, arguments.41 Other factors also contributed to the criminalization of abortion. The decline of the white Protestant birthrate (compared to that of Catholics, immigrants, and nonwhites) led to fears of "race suicide."42 The codification movement of the criminal law, stemming from a desire to restrict judicial discretion, provided another impetus.43 The Catholic church, too, opposed abortion with an 1869 papal enactment .44 Despite fear of criminal sanctions, women still sought abortions. Abortionists practiced a lucrative trade; 200 abortionists practiced full time in New York City in 1870 (although all states then prohibited abortion) .45 Affluent women utilized illegal services or obtained a legal abortion under a "medical necessity" exception. Women also used self-help folk methods (potions, instruments inserted into the uterus, strenuous exercise , and abdominal pressure).46 Despite widespread violations, few criminal indictments resulted.47 Abortion reemerged as a public issue in the 1960s, due in large part to feminist influences . Their efforts culminated in Roe v. Wade in 1973-called "the second wave's biggest, most significant victory. "48 On the same day, the Supreme Court decided Rot9 and the lesser known Doe v. Bolton.5o Roeexamined the constitutionality ofan 1850s Texas statute prohibiting abortion except to save the life of the mother.51 The Supreme Court ruled that the state could not interfere with abortion during the first trimester; during the second trimester, the state may regulate abortion if the regulation is reasonably related to maternal health. After viability, however, the state may prohibit abortions in the interest of potentiallife . The Court grounded its decision on the right to privacy which inheres, according to the Court, in the Fourteenth Amendment's guarantee of personal liberty . Doe v. Bolton challenged Georgia's ALI model statute mandating residency and procedural requirements.52 The Court invalidated the requirements that an abortion could be performed only in an accredited hospital after approval by three physicians and a hospital review board panel. Copyrighted Material 934 I ABORTION Roe's impact was far reaching. Its effect was "to enunciate a principle under which the existing abortion legislation in at least forty-nine states and the District of Columbia was invalid."53 Surprisingly, Roe engendered a spate of criticism.54 Feminist and other critics charged the Court with judicial activism, usurping the power of the legislature , and engrafting a new right in the Constitution.55 The trimester approach and the emphasis on viability, in particular, were criticized.56 Some writers castigated the Court for short-circuiting legislative reform.57 Feminists also criticized Roe for failing· to declare unconstitutional the regulation of abortion at any stage of pregnancy.58 Many feminists criticized the case for its doctrinal basis in the right to privacy rather than in equal protection,59 a criticism that is explored further in the essays herein. Conservative pro-life forces mobilized to undercut Roe. "For about a decade following the 1973 decision, the 'fetal personhood' campaign, spearheaded by the Catholic Church and later joined by Protestant New Right fundamentalists, held center stage."60 Federal legislation was introduced to limit Roe; proposals were advanced to amend the Constitution.61 Pro-life advocates urged reconsideration of Roe. Subsequent Supreme Court decisions , although not overturning Roe, retreated from its holding. In Harris v. McRae,62 the Court upheld the constitutionality of the Hyde Amendment, eliminating federal Medicaid funds for abortions, despite the use of such funds for childbirth . The Court reasoned that, although the state could not prohibit an abortion, it did not have to fund it. Subsequently, in Rust v. Sullivan,63 the Court upheld regulations prohibiting federally funded programs from providing abortion counseling or referrals. Abortion opponents continued efforts to limit Roe through statutes making abortion more burdensome. Conservative members of the Court made inroads on Roe. In Webster v. Reproductive Health Services,64 the court upheld, in a plurality opinion, a Missouri statute that prohibited the use of public funds, employees, or facilities for any abortion not necessary to save the woman's life and that required viability tests on the fetus of women 20 or more weeks pregnant. The funding restriction effectively eliminated abortions at public hospitals, even for paying patients. Moreover, the court let stand the statute's preamble that defined life as beginning at conception-avoiding the issue of its constitutionality by reasoning that the language had no regulatory effect. Webster-aroused renewed expectations that the Court might overrule Roe. Another opportunity arose in Planned Parenthood v. Casey.65 Casey upheld all but one of Pennsylvania 's restrictive provisions, including a mandatory waiting period; an informed consent requirement mandating the provision of information regarding fetal description , state-funded prenatal care, and the biological father's child support obligations; and an informed consent requirement for minors who must secure consent ofat least one parent. (The Court invalidated only the spousal notification requirement). Although the joint opinion reaffirms abortion as a basic right rooted in liberty and privacy , it also enunciates a new "undue burden" standard66 for permissible state regulation . In the face of such judicial decisions, some reformers proposed the Freedom of Choice Act67 to amend the Constitution by codifying Roe. Copyrighted Material Introduction I 935 Feminist Perspectives on Abortion A feminist perspective emerges from the voluminous literature on abortion. Political scientist Mary Seegers68 identifies the following elements ofsuch a perspective: an emphasis on pregnancy as involuntary in a society devaluing childbearing and childrearing ; a recognition of the "asymmetrical impact" of pregnancy; abortion as an issue of autonomy in reproductive control in a patriarchal society;69 an understanding of ethical dilemmas that are distinct from those in other contexts (such as homicide);70 and a linkage ofabortion to the objectives (justice, liberty, equality, and autonomy) of the women's movement.71 Rothman points to an additional element, the centrality of the fetus in the birth process, which was prompted by technological advances in prenatal screening and diagnosis , as a development with consequences for abortion.72 Luker identifies influences brought about by ideology and social roles. Her sociological study ofactivists reveals that pro-life and pr