Wednesday, July 15, 2009

Why the Privacy Justification for Abortion Rights is Bad

Every few years (lately, at least), a new nominee comes up for a position on the Supreme Court. For a week or so, the entire country is abuzz with constitutional chatter. Old news becomes news again, simply because we are reminded of it during Senate Judiciary committee hearings like those Justice Sonia Sotomayor is undergoing (or enduring?) now. Of course the perennial Supreme Court case for massive controversy is that of Roe v. Wade. Once again, abortion talks have been the most contentious and interesting in an otherwise boring hearing, thus far, and Roe has been the focus of some of the surrounding drama even outside the committee ("Jane Roe," who has become something of an anti-choice fanatic, was arrested outside the hearings).

Anti-choicers come out of the woodwork to remind us abortion is murder, while feminists and pro-choicers prepare to defend Roe until their dying breaths. As a pro-abortion rights feminist myself, such vociferous defense of Roe is tempting to me, but as one who sees the other dimensions to "rights," that go far beyond the government act of not actively stopping you from doing something, I have to remind myself to resist this game.

It's true that Roe v. Wade was monumental in assuring some American women could have some abortions. It was a vast improvement from the conditions of the pre-Roe days. But part of Roe's failure is in the very basis for the decision, the "right to privacy," as the court at the time and since, has seen in the constitution. Legalizing abortion on the grounds of a right to privacy narrows abortion rights to a neoliberal playing field. The factors of economics, geography, and everything else neoliberalism ignores, are ignored by the Roe v. Wade decision.

The fact that abortion has been framed by pro-choicers as a private issue, plays a role in nurturing public opinion into supporting things like the Hyde Amendment, which stop public dollars from being used for abortions. It prevents people from finding the language to demand a certain number of abortion clinics in every county, rural or not. Few women are helped by a law that guarantees her right to abortion, if the nearest clinic offering abortion services is 400 miles away. If this is an issue of individual privacy, however, how can we demand that the public assist us when we need the assistance? Abortion access isn't a matter or privacy but a matter of justice.

In other words, Roe v. Wade leaves us with a landscape in which women are told, sure, you're free to get an abortion, if you can find a place to get one, leap the access hurdles we've put in place, are of an age we deem appropriate, and have the money to pay whatever subjective price anyone decides to charge you, regardless of your financial position.

Yes. Of course abortion should be legal. But legalized abortion in the privacy viewpoint of Roe alone does not mean women have reproductive freedom or a just reproductive landscape.

Does this mean we should actively campaign against Roe? Not necessarily. I mean, say you get it overturned and abortion is left to the states. You might get a few outlier states that protect abortion rights and provide some sort of guarantee for their access, but for the most part, you'd have a lot of women in states that serverely limit their access to abortion services, even more so than they are now. That doesn't sound ideal to me.

I think the key is really about the discourse we use when we defend abortion rights. Let's not defend the Roe v. Wade ruling or try to explain where the right to privacy is guaranteed in the constitution until we're all red in the face. Let's talk about why abortion must be legal, for the safety and freedom of all women. But let's talk about reproductive justice in a much wider frame. Let's talk about money. Let's talk about access. Let's talk about rights for young people and minorities. Maybe someday Roe will be replaced, not by states' rights that further limit women's rights, but by federal legislation that recognizes the actual needs women have when it comes to reproductive freedom. Changing the discourse is the first step toward that.


T said...

I'm very sympathetic to this trajectory of critique on this issue. Its frustrating how hard it is to make nuanced points like this, since both 'sides' are often in fight-or-flight mode trying to defend (or attack) Roe, rather than confronting larger issues.

I will defend Roe until the cows come home, but like you point out, not for the legal reasons explicitly undergirding that ruling (i.e. right to privacy). I've always felt that if they are right about nothing else, many 'anti-choicers' are in fact correct to point out that the pro-Roe argument is not really just about choice, that is to say, defence of abortion rights is no morally neutral affair. Why not, it seems, use the (easily coopted by neoliberalism) 'choice' argument to defend people's 'private right to do as they please' and murder people in the privacy of their homes? Well, because murder is wrong: we should not extend the logic of choice to include an act that kills people.

Now this is where, it seems to me, the defender of abortion rights cannot back off and bracket all of the contentious ground and only talk about 'choice'. Abortion is NOT tantamount to murder, first of all. This argument is preposterous. And second the right of women's control over their own bodies overrides the paternalistic finger pointing that demands that 'women carry through on their responsibility to have a child', etc.

But arvilla is right on in saying "Let's talk about why abortion must be legal, for the safety and freedom of all women. But let's talk about reproductive justice in a much wider frame. Let's talk about money. Let's talk about access. Let's talk about rights for young people and minorities."

Anonymous said...

Great post. I totally agree; the "privacy" justification is extremely dangerous, and I think it's also somehow managed to help erase women's real individual voices and experiences. If private things are your individual business, why should the public be interested in hearing about them, much less supporting them? As you probably know, "privacy," or "we don't mind what goes on in your house as long as we don't hear about it," also served as past justification for, e.g., child and spousal abuse.

You might be interested in Celeste Condit's _Decoding Abortion Rhetoric_. I'm reading it now. It's a bit dry, but she basically breaks down the history of the abortion debate and how it came to be that pro-choicers used the particular arguments they did.