About Abortion: Terminating Pregnancy in Twenty-First-Century America

About

Abortion

Terminating Pregnancy in Twenty-First-Century America

Carol Sanger

THE BELKNAP PRESS of HARVARD UNIVERSITY PRESS

Cambridge, Massachusetts & London, England · 2017

Copyright © 2017 by the President and Fellows of Harvard College

All rights reserved

Jacket Illustration: Jesse Mockrin, Because of You (2014)

Jacket Design: Lisa Roberts

978-0-674-73772-3 (alk. paper)

978-0-674-97730-3 (EPUB)

978-0-674-97728-0 (MOBI)

978-0-674-97729-7 (PDF)

The Library of Congress has cataloged the printed edition as follows:

Names: Sanger, Carol, author.

Title: About abortion : terminating pregnancy in twenty-first-century America / Carol Sanger.

Description: Cambridge, Massachusetts : The Belknap Press of Harvard University Press, 2017. | Includes bibliographical references and index.

Identifiers: LCCN 2016041934

Subjects: LCSH: Abortion—Moral and ethical aspects—United States. | Abortion—Law and legislation—United States. | Abortion—Political aspects—United States. | Abortion—United States—Psychological aspects. | Pregnancy, Unwanted—United States.

Classification: LCC HQ767.15 .S26 2017 | DDC 179.7/6—dc23

LC record available at https://lccn.loc.gov/2016041934

IN

MEMORY

OF

My father

Marshall Sanger

Colonel, United States Army

1923–2004

AND

To my dear mother

Lila Sanger

Contents

Preface

1      About Abortion

2      The Law from Roe Forward

3      Abortion Privacy / Abortion Secrecy

4      The Eye of the Storm

5      Facing Your Fetus

6      You Had Body, You Died

7      Sending Pregnant Teenagers to Court

8      Fathers and Fetuses—What Would Men Do?

9      Normalizing Abortion

Notes

Acknowledgments

Illustration Credits

Index

Preface

Any book about abortion necessarily begins in media res. This is because the problem of unwanted pregnancy does not start with abortion. Abortion follows pregnancy, whether that pregnancy has been much sought after and highly desired or whether it is the worst thing ever. Pregnancy, in its turn, follows sexual intercourse, whether that intercourse was calculated, casual, or coerced. (Because we live in modern times, pregnancy and so abortion may also follow more technical forms of conception, such as embryo implantation.) To say that abortion falls in the middle of things is to say that abortion is located at a discrete intersection in a woman’s life. On one side, there is pregnancy. On the other side is non-pregnancy and the status quo with regard to the number of children: a mother of two remains a mother of two; a girl does not become a mother.

This is not to say that a woman’s life necessarily proceeds exactly as it would have had there been no pregnancy and no abortion, though many lives do. For some women, abortion registers as a profound loss, the date or a projected birth date reflected upon, sometimes commemorated, for years to come. For many others, the core reaction is one of relief and the welcome return of the preferred (at least for now) non-pregnant self that almost got away. Still other women experience both relief—the most widely reported emotion following abortion—and some form of regret or wistfulness, not about the decision itself, but because the circumstances around the pregnancy—partner, finances, obligations, plans—were just not right enough to proceed.

In this way every abortion has a context, a set of befores and imagined afters that inform how women’s decisions about abortion are made and how they are experienced. It is as though on the chronological spectrum of a woman’s life, a notional push pin has been planted on the spot marking the decision. That same pin marks the subject of this book: how women confront and decide about unwanted pregnancy within the complicated structures of constraint—personal, cultural, legal—that frame the issue of abortion in modern America.

Just as individual abortion decisions can be located on a timeline, abortion as an historical practice also has a set of befores and afters. The befores in this larger sense are the hundred or so years when abortion at any stage of pregnancy was a crime in most American states. That regime ended in 1973—this is where the second push pin goes in—when the Supreme Court struck down Texas’s criminal abortion statute on the ground that it unconstitutionally interfered with the newly recognized right of women themselves to decide whether to keep or end a pregnancy. Abortion has been legal since, though in many states very hard to come by; thus the second pin has a very wide bandwidth. The afters for legal abortion are not yet known.

Abortion is an individual practice, something women engage in one by one, and it is also a social practice, for every abortion involves not only the pregnant woman but something of a supporting cast (supporting in the sense of surrounding). There are the doctors and nurses who provide care; the friends and partners who know; the friends and partners who don’t (or don’t quite); the sidewalk protestors or, depending on one’s point of view, sidewalk counselors outside clinics who try to persuade women to save their babies and souls by turning around and going home. If each of the 700,000 or so women and girls who terminated a pregnancy in 2015 interacted with only a few others along the way—one nurse, one partner, one pastor, one babysitter for the kids, one good friend, one receptionist—several million more people are involved.

Pulling the camera back a bit further, more players come into view. There are spiritual leaders and media figures who regularly pronounce on the subject; television producers and sponsors who decide whether and how abortion should be portrayed in entertainment programming; and, crucially in the American context, the legislators and judges who regulate the provision of abortion through a vast network of law. With this large a cast, it is easy to see that unlike other medical procedures performed at about the same rate—knee surgery, for example—abortion has a social and political economy of its own: a mix of private decision making and public policy, constitutional rights and statutory constraints, with moral conviction standing firm, for the most part, on both sides of the issue.

In sorting out the furor that is abortion in America, three themes circulate throughout this book. The first is the matter of how abortion is regulated, or abortion law. The second concerns the way abortion is discussed or, as is more often the case, how it is not discussed. I call this abortion talk. The third theme concerns the visual culture of abortion or abortion imagery. The dominant image here is not a pregnant woman—most abortions take place before any bump makes its debut—but rather the fetus, which most Americans have come to know through the celebratory sharing of ultrasound scans by happy, expectant parents.

The connections among these three themes—law, talk, and imagery—form the basis of this book’s central argument. This is that the secrecy surrounding women’s personal experience of abortion has massively, though not irreparably, distorted how the subject of abortion is discussed and how it is regulated. We understand why most women don’t talk about abortion in this way: it is too personal, too risky, too stigmatizing. We understand as well what a powerful force fetal imagery has been in the campaign to persuade all of us that terminating a pregnancy is killing a person. The claim that a fetus is a person, or a sort of person, has great appeal, in part because many readers may have felt an intimate bond with their own fetus before its birth. The images that bring about this intimacy are the ultrasound scans that so delight women with wanted pregnancies. How does that same imagery register for women whose pregnancies are or have become unwanted? Consider laws that insist that a woman must have an ultrasound and be offered a look at her unborn child, in the language of the statute, before she may legally consent to an abortion. The requirement confuses wanted with unwanted pregnancies, as antiabortion legislators seem happy to do. The example shows how visual technology has created a visual politics and how antiabortion lawmakers have opportunistically—and brilliantly—seized upon both in their campaign against abortion.

I am a lawyer by training, and so the law-inflected exploration of abortion that follows is in part a matter of disciplinary orientation. But only in part. For lawyer or no, it is not possible to understand the enduring grip that abortion holds on American society without an appreciation of law’s role in the scheme. In ways subtle and increasingly overt, the structure of American law helps sustain abortion’s place as a vivid—sometimes incendiary—public issue whose legality is not simply contested but sought after as the coveted jewel in the political crown. At present state legislatures cannot forbid abortion entirely, though several have certainly tried. In other attempts to create abortion-free zones, states have been hacking away at the abortion right in every way they can. The general strategy has been to make abortion harder to get: harder legally, financially, emotionally, and practically. As humorist Jon Stewart observed, just because a procedure is completely legal doesn’t mean it has to be treated that way.

The exact limits on the states’ authority to regulate in this area are not yet clear—abortion law remains a work in progress as statutes and regulations are passed, challenged in court, appealed, redrafted, challenged in court again, and so forth. Understanding existing limits requires a sense of the constitutional framework, starting with Roe v. Wade in 1973, stopping at Planned Parenthood v. Casey in 1992, and ending (for now) at the 2016 case of Whole Woman’s Health v. Hellerstedt. Each of these cases assessed and adjusted the constitutional boundaries of the state’s regulatory authority. Although the twists and turns of constitutional doctrine are crucial background, I focus here on the statutes enacted in light of evolving doctrine. Since the Casey case in 1992, laws have been tumbling out of statehouses around the country, framing the action on the ground for women, doctors, and medical staff.

I am particularly interested in the relation between abortion laws and harm to women. In the mid-nineteenth century, concerns about women’s physical well-being at the hands of unregulated entrepreneurs led (in part) to the criminalization of abortion. Attention then turned to the harms women suffered when they were unable to get a legal abortion at all: the toll that repeated pregnancies took on women’s bodies and the woeful history of physical harm wrought by illegal abortions. More recently, pro-life advocates have expressed concerns about the harms that pregnant women are said to suffer by virtue of abortion’s legality: the likelihood of remorse, depression, and guilt about which women must now be warned in a fair number of states before they may consent to the procedure.

Most of these claims about how abortion harms women—some historical, some real, some fanciful—are fairly well known. But there has been little public discussion of the harms caused by abortion regulation, even when women are in the end able to obtain a legal abortion. This omission is problematic if we are after a comprehensive account of the stakes for women in abortion’s regulation. The hyper-regulation of abortion—the burdensome requirements placed on providers, patients, and clinics—has been served up less to protect women from the physical or psychological dangers of the procedure than to deter and perhaps to punish them for choosing to terminate their pregnancy, an act that is for some a morally reprehensible killing.

One of the problems with America’s ongoing abortion debate is that much of the standard fare has become cartoonish and contrarian. The 1996 movie Citizen Ruth, featuring Laura Dern as a glue-sniffing gutter punk in a confused state of pregnancy, captures some of this. Ruth is sought after as a poster child by both pro-life and pro-choice advocates who end up bashing one another with placards as Ruth, who in classic Hollywood abortion-avoidance mode has miscarried, slips away with bribe money from both sides. But while the melee in Citizen Ruth is comic, there is real violence surrounding the actual provision of abortion services. Clinics are staked out, sent powdery anthrax letters, and bombed. Physicians and clinic workers are regularly threatened and sometimes murdered, and clinic patients are accused of murder as they arrive for their appointments. Against this background of violence, the martial characterization of abortion as war, as struggle, as clash, as battlefield is perhaps inevitable.

But amidst the fog of abortion wars, something has gotten lost. This is the possibility of conversation at a lower decibel by women concerning their own abortion decisions and experiences. We understand why most women don’t talk about abortion at the level of individual experience. Yet this form of silence takes a toll on women’s well-being; it turns out there is something literal about being weighed down by a secret.

The silence around abortion has implications not only for how individual women fare but for the rest of us who seek to live in a decent society. Citizens, including Citizen Ruth, are not just the subjects of law. Citizens are also supposed to make law, directly or indirectly, and we cannot advance how we and our representatives think about something—and certainly not how it should be regulated—until we start talking about it. As with other topics that in the past have dared not speak their name—cancer, depression, divorce, being gay—we cannot regulate abortion without a more thorough understanding of the subject. It is hard to imagine the possibility of same-sex marriage when the word homosexual was unutterable and the word gay meant nothing but cheerful. Support for marriage equality came in great part from people’s awareness of and love for the same-sex couples around them. More open talk by women about abortion is particularly important now when so many abortion regulations are premised on the view that it is abortion that harms women and not its regulation.

What might a public conversation look like if we took a collective deep breath, dusted ourselves off, and considered anew the values and topics that constitute talking about abortion? I don’t quite mean consciousness-raising, though there are worse ideas. If a third of all American women will have had an abortion by age forty-five, most people probably know at least one of them, whether they think they do or not.

In urging that we dust ourselves off, I am not suggesting that we follow the lyrics exactly and start all over again, unwinding the basic holding in Roe v. Wade. I proceed in this book with abortion’s basic legality firmly in place. Even so, there is much to discuss about the shape that regulation has taken since 1973. I want to consider aspects of abortion often avoided or rejected outright in existing conversations. I have in mind the impasse wrought by the faux query to pro-life advocates that You can’t really think an embryo is a person? or the reproach to those who support legal abortion that abortion is murder straight-out and we are living amidst a Holocaust of the unborn. In the pages that follow I mean to take seriously, though not uncritically, the profound meaning of fetal life for those who oppose legal abortion as well as (on the same terms) the profound meaning of women’s lives to those who support the abortion right.

In suggesting that public discussion of abortion would be improved by each side’s consideration of central concerns of the other, my claim is not that the issue of abortion would be put to bed if we just showed one another a little more respect. After forty years of contention, disagreement about abortion is unlikely to melt away after just one bucket of courtesy. Nor is my aim some sort of cheerful gesture toward compromise. I doubt that there is any harmonic convergence hovering above waiting to sort out the issue if only we would all just listen more carefully.

Nonetheless, to the extent that there is sense and profit in talking about abortion and its regulation—as there must be in a society that takes both the process of democratic lawmaking and the well-being of citizens seriously—there is more to say. Disagreement about abortion is not at its core a problem of civility, though we do know the damage and intransigence that result from uncivil and fractious exchange. Think of the Republican congressman who shouted baby-killer on the floor of the House in 2010 (and at a pro-life legislator no less) as part of the uproar over whether Obama’s Affordable Care Act would include coverage for abortion. In a civil society, points of affinity are worth pursuing even if they do not conclusively resolve the bitter debate that abortion has become. Even when the stakes appear intractable, things can sometimes be made better. Pro-choice people are not murderers and pro-life people are not idiots.

This book is neither for abortion nor against it. It is about abortion. Its aim is to expose how the law often works to make the lives of women with unwanted pregnancies harder than they have to be. Doing this is a complicated process. It requires untangling religious sources of opposition to abortion from secular objections and identifying cultural factors that persuade citizens into or out of a particular camp. It also requires assessing the costs to women of the present legal regime. Certain costs are fairly straightforward: the increased financial costs of traveling an extra hundred miles to the nearest clinic or paying for a motel while waiting out the forty-eight-hour cooling-off period. Others are harder to get at. Over forty states require girls who want an abortion without telling their parents to appear before a judge and prove they are mature enough to decide about abortion. The stress and humiliation to a pregnant teenager of answering questions about her sex life or explaining her mother’s depression are not so easily measured. Because women don’t like to talk about their abortion experiences, I have had to dig deep with regard to sources, relying on judicial decisions, statutes, media reports, pop culture references, as well as secondary sources from history, sociology, and anthropology. I have also turned to examples of abortion in literature when evidence or textured discussion is unavailable from traditional sources.

Untangling the various strands in our furious national debate reveals much about the role of abortion in American culture—why, for example, abortion law has taken its present, paternalistic shape concerns shading into punitive intentions. The political flavor of abortion regulation—whether respect for the underlying right or determined opposition to it—changes as administrations change. This partisan structure makes it all the more important that part of why they stay mum and feel bad is because a carefully configured structure of regulation welcomes that very outcome. Looking at the dismantled structure—seeing what holds the whole thing up and for what purposes—offers an opportunity for reconstruction along different lines. We might, for example, find it sensible to replace the current regime of shame and apprehension with the kind of quiet dignity that usually attaches when women and men make important life-changing decisions about such things as who to marry or whether or not to have a child.

1

About Abortion

For the last forty years abortion has embedded itself in American consciousness, American politics, and American culture with remarkable durability and reach. Looking only at the first two decades of this century—from Bush to Obama, to use presidential landmarks—abortion has been central to how Americans conceptualize, debate, and sometimes resolve all sorts of official things: nominations to the Supreme Court, asylum policy, health care reform, high school sex education, and what medical services will be provided to American servicewomen stationed overseas. Abortion has also been at the heart of disputes over what products Walmart keeps on its shelves and whether Super Bowl fans should watch or boycott half-time advertisements. Reliably divisive, the subject is never far out of sight. It stands at the ready to stir the pot or, depending on one’s viewpoint, to bring sudden clarity to whatever issue is under discussion.

Each year brings new controversies over something to do with abortion. In 2012, a publishing storm arose over whether a Doonesbury strip on abortion law in Texas (Nurse to Patient: You’ll need to fill out these forms. Please take a seat in the shaming room) should be carried on the funnies page, the editorial page, or canceled altogether.¹ In 2014, the crowd-funding site GoFundMe shut down a donation site raising money for an abortion. GoFundMe later clarified its terms of service to ban all fundraising related to abortion, gambling, or sorcery.² Miss America 2015 made headlines in the pro-life blogosphere for having interned at Planned Parenthood while a college student. This will cast a shadow on her entire reign, said Carol Tobias, the president of National Right to Life.³

There have been provocative rap video lyrics—the 2005 Can I Live? sung by a young black man to his abortion-minded mother as she lies on a clinic table next to a tray of surgical instruments (Hopefully you’ll make the right decision / And don’t go through with the Knife incision)⁴ as well as pop songs like Nicki Minaj’s 2014 All Things Go in which she muses on an earlier abortion (My child with Aaron would be sixteen any minute).⁵ There is also the slow creep of abortion into television programming, where, aside from Maude ages ago and a few modern exceptions, most unwanted pregnancies become either wanted (Sex and the City) or unnecessary (Girls) or are aborted because the shows are British (Prime Suspect) or Canadian (DeGrassi High).⁶ There is also the real-life drama of legislative politics: the all-night filibuster in 2013 by sneaker-clad Wendy Davis on the floor of the Texas Senate opposing a ban on abortion before viability, or the 2011 testimony (via ultrasound) of two fetuses before an Ohio legislative committee supporting a ban after the detection of a fetal heartbeat.

Other abortion controversies bring to the surface long-standing social tensions, such as those around race. In 2011, a huge billboard appeared in Manhattan featuring a pretty black child in a sundress above the caption The Most Dangerous Place for an African American is in the Womb.⁷ Similar billboards (Black Children are an Endangered Species) went up in Atlanta, all part of a pro-life outreach campaign to minority communities denouncing legal abortion as part of a genocidal plan.⁸ (Because nothing is simple when the subject involves abortion, the New York billboard generated a controversy of its own: the child’s picture had been taken at an unconnected photo shoot at a modeling agency; her mother demanded an apology for its use in an antiabortion campaign.⁹) More recently, the language of Black Lives Matter has been invoked to challenge pregnant black women considering abortion. A headline captures the message: Planned Parenthood Kills Over 266 Unarmed Black Lives Each Day.¹⁰

Abortion for the purpose of avoiding a girl (or boy) raises questions about discrimination on the basis of sex, or at least what some identify as sex discrimination and others consider nothing more than gender preference or gender balancing among one’s offspring. As one woman who sought a girl by selecting embryos through pre-implant genetic diagnosis stated, I think it is a personal decision for us and it’s really nobody else’s business.… This is the United States and, and you know we get to do everything else we want to do.¹¹ There is some evidence that a preference for sons has manifested itself in skewed girl–boy birth ratios within certain immigrant communities.¹² Perhaps in response, in 2013 Kansas and North Carolina joined six other states in criminalizing any abortion performed for the purpose of sex selection. (Whether such legislation is constitutional is another question.)

Erin Glockner of Pataskala, Ohio undergoes an ultrasound before the Ohio House Health and Aging Committee, March 2, 2011. Glocker’s nine-week fetus, seen on the jumbo screen to the right, and its amplified heartbeat were presented to a packed hearing room as testimony to show the materiality of fetal life.

Things seem to be about abortion even when the link to abortion is not on first glance entirely apparent: a ban on stem cell research, a bomb at the 1996 Atlanta Olympics, the furor over the vegetative Terri Schiavo, and congressional opposition to protective sex trafficking legislation in 2015 or to Zika prevention funding in 2016. Other asserted connections to abortion are not entirely accurate. Consider the assertion that abortion increases a woman’s chance of suicide or the Freakonomics claim that the legalization of abortion in 1973 explains a dip in the crime rate eighteen years later.¹³

There are also disputes over the preliminary question of whether an issue has anything to do with abortion at all. Such an example arose in the seemingly unlikely context of stillbirth. In recent years, states across the country have enacted what are called Missing Angel Acts, statutes that authorize birth certificates for stillborn infants. The acts resulted from lobbying by bereaved parents who argued that a fetal death certificate, the form of documentation that traditionally accompanied stillbirth, failed to capture the true nature of their loss: it was not a fetus who had died but a child who deserved the same official recognition as any other newborn.¹⁴

Despite enormous sympathy for the parents, concerns were raised that issuing birth certificates for children who never lived—certificates commemorating life before and in the absence of live birth—might over time play a part in the continuing campaign against abortion. Might, for example, states start issuing or even requiring birth certificates for aborted fetuses? Missing Angel supporters insisted that the legislation had nothing to do with abortion but was only about providing solace to grieving parents.¹⁵ The concern remained, however, that it may no longer be possible to cabin the cultural or political meaning of anything to do with fetal life or death in the United States. Compromises were reached and the language of the acts was clarified so that stillborn birth certificates could be issued only on parental request and never in the case of abortion. Still, however compassionately conceived, Missing Angel Acts may nonetheless deepen cultural familiarity with the fetus as a child, and once established the status may take on a life of its own; four states now provide parents with dependent tax deductions in the year of the stillborn baby’s birth.¹⁶ The Missing Angel example illustrates how cautious the subject of abortion has made everyone and how attentive citizens have become to even the possibility of a connection to abortion.

Why is it that so many issues end up having an abortion connection and that, once the connection is found, the issues become so susceptible to ignition? So many things in American public life are about abortion because abortion itself is about so many things—things in which people are invested as matters of faith or family, politics or moral principle, gender commitments or professional identity. This exploration of abortion’s aboutness begins by setting out the central categories into which abortion falls in order to ground the subject culturally and to show how much is at stake—how much bubbles up—when people talk about or around the issue.

What Abortion Is About

Abortion is, in the first instance, a medical procedure. The term abortion refers to the induced termination of a pregnancy. A leading obstetrics textbook defines induced termination of pregnancy as the purposeful interruption of an intrauterine pregnancy with the intention other than to produce a live born neonate, and which does not result in a live birth.¹⁷ Where abortion is legal, this is usually performed by a doctor either surgically (with instruments) or, since the development of the drugs mifepristone and misoprostol in the late 1990s, through induced miscarriage, or medical abortion. Within the medical, research, and public health communities, abortion remains an important aspect of obstetric care. Doctors and other medical professionals provide abortions to women in countries where it is legal, and they treat them after the fact in countries where it is not. Thirteen percent of all deaths included in maternal mortality statistics worldwide are deaths from unsafe abortions.¹⁸

The characterization of abortion as a medical procedure is important in non-clinical ways as well. It matters to how abortion is treated at law, for like most other forms of medical care, abortion is subject to regulation as part of the state’s general interest in the health and welfare of its citizens. Under the state’s police power, all doctors are licensed and all medical facilities inspected. Of course, the regulation of abortion is not quite the same as that of other medical procedures. Since the development of a robust pro-life movement following the Supreme Court’s 1973 decision in Roe v. Wade, abortion has become the most regulated medical procedure in the United States, with hundreds of laws pouring out of statehouses yearly.¹⁹

Abortion is also about rights. In Roe, the Supreme Court announced that a constitutional right of privacy was broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.²⁰ Until then, abortion had not been a right under the federal Constitution; it was simply legal in some states and illegal in others. And where it was illegal, abortion was not about rights or medicine. It was about crime and all that follows from that designation: the surveillance, prosecution, and punishment of abortion providers, though, it is interesting to note, not of women themselves. In many ways, abortion is still about crime even though it is no longer criminal. At the individual level, the furtiveness that often surrounds getting an abortion can make it feel criminal, and as a matter of politics, its legality seems ever up for grabs. Certainly abortion is still associated with crime, as sidewalk protesters plead with abortion patients not to kill their babies and as abortion providers are themselves shot and killed.

Abortion is about other claims to rights as well. Some of Roe’s most ferocious opponents are defenders of states’ rights who contend that the legal status of abortion should have remained a matter for state legislatures, and not federal courts, to determine.²¹ Some combine this with an insistence on democratic principles that all decisions about abortion should be made by legislative institutions, whether federal or state. These views about rights and institutional structure often link up with particular theories of constitutional interpretation, such as textualism and originalism. (Thus as part of their pro-life pledge, the 2012 Republican presidential candidates promised to appoint federal judges committed to restraint and applying the original meaning of the Constitution.)²² Because the word abortion is unmentioned in the text of the Constitution, there has been ongoing contestation about which (if any) of the provisions or animating values that are in the text provide the clearest and most hospitable accommodation for finding a right to abortion. In Roe v. Wade, the Supreme Court found that the right derived from a constellation—a penumbra in the Court’s inventive phrase—of other explicit provisions that protect aspects of privacy, like the Fourth Amendment prohibition on warrantless searches.²³ This view was resisted by those (including the four dissenting justices) who thought a right to choose abortion was itself an invention unsupported by constitutional text or precedent. In an influential 1973 article, constitutional law scholar John Hart Ely put the matter this way: "[Roe] is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be."²⁴

Other scholars and jurists, quite secure about the Court’s authority and the Constitution’s scope regarding abortion, suggest that the right might have been more satisfactorily framed not (or not only) in terms of privacy but in terms of other protected interests, such as sex equality.²⁵ In cases following Roe v. Wade, the Supreme Court itself has used the language of liberty and autonomy to characterize the nature of the right at stake. Others have invoked the First Amendment, prohibiting the establishment of religion by the state, and the Thirteenth, invoking the ban on involuntary servitude. Outside the United States, the abortion right has been successfully defended on such grounds as human dignity, the right to health, and the right to life of pregnant women. These have found support in international treaties such as the Convention of the Elimination of All Forms of Discrimination against Women, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights, and in the national constitutions of Colombia, Poland, and Peru.²⁶

Doctors too have made rights-based claims about abortion. Some argue that their rights to practice medicine and to freedom of expression are unconstitutionally curtailed by statutes prohibiting certain methods of abortion or requiring them to tell their patients that a fetus is a full human being or that it feels pain.²⁷ Other doctors claim conscience-based rights not to participate in abortion procedures at all or, while medical students, not to learn how to perform one. Supporting that position, in 1996 Congress enacted the Coats Amendment, which protects training hospitals from losing federal funds if they fail to provide abortion training in obstetric residency programs, as otherwise required by the accrediting board for medical schools.²⁸ Forty-five states and the federal government have now enacted conscience clauses permitting physicians and other medical professionals, such as nurses and pharmacists, to refuse to provide or participate in abortion services.²⁹ Yet some physicians now assert conscience-based claims in the other direction, arguing that their moral convictions about providing abortion services must also be respected if we are to take conscience seriously.³⁰

Last but so not least, there are important claims made about the rights and interests of the fetus. Indeed, many pro-life supporters would say that abortion is only about an embryo or fetus’s right to develop until its natural birth—its right to life—and that the rest is noise. Whether the fetus has constitutional rights or moral rights or any other claim to respect, there is no question about its centrality in any discussion of abortion in the United States today. Fetal life, sometimes just called life, now competes with—or has perhaps overtaken—pregnancy as the operative essence of what an abortion is about. And although the Supreme Court in Roe v. Wade rejected the claim that a fetus is a legal person, the court has since held that states may decidedly take fetal interests into account in regulating abortion and may do so from the moment of conception.³¹

For many people, abortion is about religion. Because America is a religious nation with a robust flow between faith and politics, this category of abortion’s aboutness matters greatly. For some, abortion is about sin. In the 1995 papal encyclical Evangelium Vitae (Gospel of Life), Pope John Paul II declared that the modern world is now engaged in a struggle between a Culture of Life (unconditional respect for the right to life of every innocent person from conception to natural death) and the Culture of Death (a veritable structure of sin).³² This position has had consequences in the temporal world of politics. In 2005, former Pope Benedict XVI, when still Bishop Ratzinger in his position as Prefect for the Congregation for the Doctrine of the Faith, declared that a Catholic would be guilty of formal cooperation in evil, and so unworthy to present himself for Holy Communion were he or she to vote for a candidate because of the candidate’s permissive stand on abortion.³³ Thus during the 2004 presidential campaign, the Roman Catholic bishop of Boston urged priests to deny Holy Communion to Senator John Kerry, and the bishop of Colorado extended the ban to Catholics who vote for candidates who support legal abortion.³⁴ This was a powerful shot across the bow as candidates and voters alike learned that they might place themselves outside of full communion with the Church and so jeopardize their salvation.³⁵ During the 2012 presidential campaign, Vice President Joe Biden received a similar warning. In 2016 vice presidential candidate Tim Kaine was not denied communion, despite the urgings of Richmond area priests, though he was accused by the Archbishop of Kansas of being a cafeteria Catholic who picks and chooses among the Church’s teachings for political convenience.³⁶

We do not yet know Pope Francis’s position, if any, on Catholic candidates or voters with regard to abortion beliefs or practices. His statements about abortion so far have been that the Church might lessen its obsession with the topic; that abortion is horrific; and that Catholic priests may absolve women who repent the grave sin of abortion.³⁷ Cathleen Kaveny, professor of law and theology, suggests that Pope Francis’s general focus on the context in which abortion (and other sins) take place may situate the Church’s stance on key cultural war issues in the broader frame of Catholic social teaching, which is concerned with the fate of vulnerable persons across the board, whether they are threatened by abortion, loss of income, or geographic catastrophe due to climate change.³⁸

Of course, not all religions oppose abortion as a matter of doctrine, and doctrine itself sometimes changes over time. The Roman Catholic Church long held that ensoulment, or the beginning of human life, occurred around the time of quickening; according to Aquinas, ensoulment occurred forty days after conception for boys and ninety days after conception for girls. Only in 1974 was ensoulment relocated to the moment of conception. It is also worth remembering that official doctrine, whether of the Vatican or any other governing theological body, does not always represent the views or practices of ordinary worshippers regarding abortion. There are, for example, Catholics for Choice as well as the less well-known Jewish Pro-Life Foundation.³⁹ Thus there may be division (and reconciliation) within the laity, or even within a single person, as seen in a 1984 lecture at Notre Dame by former New York governor Mario Cuomo. Cuomo sought to distinguish between private religion and public morality: The Catholic who holds political office in a pluralistic democracy—who is elected to serve Jews and Muslims, atheists and Protestants, as well as Catholics—bears special responsibility. He or she undertakes to help create conditions under which all can live with a maximum of dignity and with a reasonable degree of freedom; where everyone who chooses may hold beliefs different from specifically Catholic ones—sometimes contradictory to them; where the laws protect people’s right to divorce, to use birth control and even to choose abortion.⁴⁰

In the last few decades, strong pro-life convictions have taken hold in such Protestant denominations as the Southern Baptists Convention in Texas and the Lutheran Church Missouri Synod, both formerly agnostic on the issue.⁴¹ (Indeed, for much of the twentieth century, Protestants were unlikely to support any issue that Catholics were for.) The antiabortion turn within