This is not the piece I was intending to post. I have been in the midst of another for the past several days, but the SCOTUS hearings on Roe have persistently and insistently urged me to write this. Much is being written and spoken already about rights of privacy and autonomy and viability standards and “undue burden” and stare decisis, and most importantly, the impact of this decision on the lives of women in this country – all topics well worth careful reflection and discussion. For the moment, however, I will leave those discussions to others. Other aspects of the case have been in the forefront of my mind, and it is my reflection on these that I wish to explore here.
So much of the popular opinion and political debacle since Roe has been framed in the language of “pro-choice vs. anti-choice;”; “pro-life vs. pro-choice;” “pro-choice vs. anti-abortion.” This rhetoric leads the debate into never-ending circles and dead-ends. The real-life issues of women being faced with unwanted pregnancies are so much more complex than this.
Most people know the legal consequence of Roe, but few have actually read Justice Blackmun’s decision in the case. It is striking in its appreciation of the complexities and in its compassion, going far beyond the letter of the law. In his opinion, Justice Blackmun gave a detailed history of common law and statutory law, and even canon law surrounding the issue of abortion, as well as analyses of the nature of personhood and the right of privacy. But much of the substance of his Roe decision centers around the issue of women’s health, and the “important and legitimate interest” the state has in preserving and protecting the health of the pregnant woman. He defined “health” broadly, and it is important to quote him here:
The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, . . . the additional difficulties and continuing stigma of unwed motherhood may be involved (410 U.S. 113, 1973).
Psychological, physical, familial, social, present and future health of the woman are all to be taken into consideration. These need to be at the center of concern, yet I have heard little of these from those representing Thomas Dobbs, the State Health Officer of the Mississippi Department of Health in the current case before the Supreme Court, Dobbs v. Jackson.
The late Justice Ruth Bader Ginsburg, while supportive of Roe’s concern for women’s health, and of its creation of a legal right to abortion, thought that basing the decision on the right of privacy was unfortunate. In a 1985 law review article, she indicated that she believed that a better and more effective approach would have been to base Roe on equal protection. As she said in a 2013 interview at the University of Chicago Law School, “Roe isn’t really about the woman’s choice, is it? It’s about the doctor’s freedom to practice. . . it wasn’t woman-centered, it was physician-centered.” And, she emphasized, the decision was made at a time when most physicians were men.
From their very origins, laws regarding abortion have not been woman-centered. Rather, they have been about rights of men, church, and state to control women’s bodies. They have been patriarchy-centered. Under Assyrian law, if a woman caused her own miscarriage, she incurred the harshest of Assyrian penalties, those equivalent to high treason – to be impaled and not to be buried. A woman who took control of her body into her own hands was considered to be treasonous -- to patriarchy. Under Mesopotamian law, if a man caused the miscarriage of a married woman, his own wife was to be similarly treated (Lerner, 119.) Clearly, the life of the fetus was not the issue of concern. The concern was the property rights of men, and women’s bodies were considered to be men’s property and bearers of their future property.
What would a woman-centered decision look like? Certainly, the personhood of women would be front and center. Since the question of whether or not women are fully human has been debated by patriarchal philosophers, theologians, and jurists for millennia, it would need to be clearly established. Also, a basis in the equal rights of women to life and liberty would be fundamental. This concern underlay Justice Sotomayor’s query of Scott Stewart, Solicitor General of Mississippi, in the court hearings on Roe, “When does the life of a woman and putting her at risk enter the decision?” This equal right of women to life and liberty has yet to be fully established by the Supreme Court’s reading of the Constitution – close, but not quite. And this country has yet to add an amendment to the Constitution guaranteeing equal rights on the basis of sex. It has far to go in making amends in this respect. Beyond these, I would like to suggest two other important perspectives.
One, advocated by feminist legal scholar Ruth Colker, is that a woman-centered approach would necessarily be based in an in-depth understanding of the impact of abortion regulation on women’s well-being. To that effect, it is valuable to read the “Voices Brief,” an amici curiae brief based in letters from 2887 women who had abortions and 627 friends of women who had abortions, and the amicus brief filed by the National Council of Negro Women, et.al. on behalf of African American, Asian American, Latina and Native American Women that were presented to the court for consideration in Webster v. Reproductive Health Services. How can anyone make such a significant decision without an understanding of the full measure of its effects?
The other would base the right to reproductive justice in a feminist ethic of care. Law professor Robin West has made the argument that reproductive freedom, that includes access to safe and legal abortion, is “a necessary prerequisite for nurturant relationships between the pregnant woman and the fetus, as well as between the mother and child, which an ethic of care seeks to encourage. Without that freedom, the ‘relationship’ is one of nonconsensual servitude, not nurturant, interdependent care” (474-475). She further argued that reproductive would better be viewed as a positive freedom – not freedom “from,” but freedom “to,” freedom “to secure women’s and children’s well-being (475).” One of the most unfortunate consequences of the way Roe v. Wade has been framed in the popular debate is that it casts woman and fetus, potential mother and child as legal adversaries, rather than in caring relation. The decision to continue or end a pregnancy is deeply personal, spiritual, and relational. It is not something a state, or church, or court can know or decide. It can only be discerned by the woman herself.
In thinking about Roe and all the issues surrounding reproductive justice, it is vital that the discussion, legal and otherwise, be centered in the personhood, self-determination, and well-being of women, with respect and honor of women’s personal, spiritual, and relational lives.
Notes
Colker, Ruth. “Feminist Litigation: An Oxymoron? – A Study of the Briefs Filed in William V. Webster v. Reproductive Health Services, 13 Harv. Women’s L.J. 137 (1990), quoted in Becker, Mary et.al., Feminist Jurisprudence: Taking Women Seriously: Cases and Materials. St. Paul: West Publishing, 1994, 462.
Ginsburg, Ruth Bader, “Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63, NCL. Rev 375, 382, 386 (1985).
Lerner, Gerda. The Creation of Patriarchy. New York: Oxford U Press, 1986.
Roe v. Wade. 410 U.S. 113, 1973.
Sotomayor suggests Supreme Court won't 'survive the stench' of overturning Roe v. Wade (nbcnews.com)
West, Robin. Caring for Justice. New York: NYU Press, 1997, 73-74, quoted in Becker, Mary et.al., Feminist Jurisprudence: Taking Women Seriously: Cases and Materials. St. Paul: West Publishing, 1994, 474-475.