Call me angry, call me sad, call me depressed. Call me all those things, upon waking up Sunday and hearing what I already knew when I went to bed on Saturday: that the Health Care Reform bill cleared the House on the narrowest of votes – but only because abortion access was sharply limited as part of the bill. For that, call me not at all surprised about Stupak-Pitts not only being introduced, but passing by a higher margin than the ultimate health care reform bill itself.
Why wasn’t I surprised?
I wasn't surprised because Stupak-Pitts is merely an extension of that age-old American value, "fuck the poor." An extension to those very folks who threw poor women, largely of color, under the bus 32 years ago (with benign neglect each year the appropriations bill comes up ever since) by not fighting tooth and nail to defeat the Hyde Amendment.
"Fuck the poor" is a long-standing American value which the majority of Americans, including women, have always accepted as part of our national identity without any meaningful push back. Even on the Left, often all you have to do is raise the spectre of undeserving folks, usually subconsciously viewed as people of color although few admit that, getting "something for nothing" and people’s so-liberal principles fold up like a cheap suit. Because their "hard earned tax dollars" can’t possibly be "squandered" on encouraging what they decide are "bad" or "irresponsible" or "ignorant" people. It’s all about judging the poor, overtly and covertly, even on the Left, as responsible for their own condition. Oh, folks say all the right things about caring, but they do, for the most part, Jack Shit.
Including women who claim to be fighting for "women’s rights" when it comes to abortion.
Maybe now is the time to stop fighting for just for women’s "equality" as measured by abortion and start fighting for some broader notion of women's human rights? In this case, the human right at issue is the human rights of women as it relates to their reproduction. For the purposes of politics, however, human rights for women has too often been defined by the politically active Left, including the most visible women’s organizations, in the United States as ONLY the right to abortion services. Full stop.
IMO this self-serving tunnelvision about what the problem is leads directly to the "shock and dismay" which always comes up when completely predictable attacks on abortion like Stupak-Pitts are undertaken by politicians. Indeed, folks lose their ever loving minds as if they had never heretofore seen an attack on anyone’s rights of such a magnitude. So, this weekend, as is always the case I got to watch folks engage in the usual blind rage and "mad as hell and I’m not going to take it anymore" finger pointing at "those people" which always happens when the Left is caught flat-footed on an issue politically which it should have seen coming, and definitely as it relates to abortion. In a nutshell, it sounds like this:
Fuck the fucking fuckers who voted for Stupak-Pitts: they all just hate and want to oppress women. They are all just deluded misogynist religious zealots. They don't care if we die. It’s all about the patriarchy. And did I mention they hate women?
The other nauseatingly-common response is the dulcet reassurance that despite a betrayal of human rights, such as the ones at issue with Stupak-Pitts, in the name of political compromise and "advancing the ball", there is really nothing to worry about, in the long run. I saw a bunch of that too, this weekend, that mirror image tunnelvision. It sort of sounds to something like this:
Remain calm. All is well. Yes, Stupak Pitts is very disturbing. But you have to look at The Big Picture. The Big Picture (health care reform) was achieved. Stupak-Pitts was a "necessary compromise". And, besides, the Senate will not go for this so it will all be excised in committee anyway. And it’s probably unconstitutional, anyhow.
The latter behavior is well meaning, but just flat out wrong (not to mention insulting at times), as I'll demonstrate below. But the former behavior troubles me more. It troubles me more because it is a political response which repeats itself ad infinitum, but does not ever learn from the past. It never appears to cause any meaningful shift in perspective about what the problem really is. It’s just the same old repetition, with a new villain. And a new excuse.
Those are the things that make ME really mad. I get mad because it feels like riding the same ride over and over again. Despite my anger, though, each time I keep hoping that the necessary venting, the necessary reassurance, the necessary parsing, will actually lead to some expansion of thought and ideas – and, most importantly, strategy.
Yet it never seems to, where the battle to preserve legal abortion is concerned.
I believe it is because politically active folks on the Left continue to look at the problem through our national prism of "fuck the poor." In fact, fuck anyone who isn’t like Us, which in the context of the politically active left is generally white middle and upper class people. This is why I feel that if there is any hope of dealing with this in committee, the progressive left needs to look honestly at what Stupak-Pitts and all similar types of legislative maneuvers do, and what they don’t do, and attack that instead of continuing to parrot the way-too-easy narratives, i.e. "they hate women" or "it’s a necessary compromise" or demand that folks "prove" that they believe in "women’s equality" as the equivalent of abortion rights. Hopefully this diary will explain why I feel that way, and maybe even persuade someone to try something new.
The rest of this diary, albeit long (and folks can stop if they don’t want to read, but I'm not a politician who does soundbites) attempts to show why, and to talk about why our past political approach to the abortion question has utterly failed women’s rights.
The Stupak-Pitts Amendment which passed the House of Representatives 240 to 194 on Saturday reads as follows:
No funds authorized by this Act (or an amendment made by this Act) may be used to pay for any abortion or to cover any part of the cost of any health plan that includes coverage for abortion, except in the case where a woman suffers from a physical disorder, physical injury or physical illness that would, as certified by a physician, place the woman in danger of death unless an abortion is performed, including a life-endangering physical condition caused by or arising from the pregnancy itself, or unless the pregnancy is the result of rape or incest.
(Some other diary can, and probably already has given how long I've been working on this diary, demonstrate how a lawyer or judge could make hay with this language and expand it far far beyond what it looks like superficially.)
IMO this language expands our country’s already-existing approval of the deprivation of human rights to poor women (and poor everyone’s, in other contexts) to those women who are working and middle class yet cannot effectuate their own rights without third party assistance, in this case a "government-subsidized" health insurance policy.
IMO the story of how this happened, and an honest assessment of the likelihood that women’s abortion access will be permanently saddled with that travesty of a bill unless an entirely new game plan is developed does not begin with the fight for legal abortion. This story begins with abandoned, and therefore lost even though we here at DailyKOS regularly pat ourselves on the bat about how great we (Democrats, liberals) are when it comes to taking care of the needy, fight to secure human dignity for the poor.
To me, the modern era of that failure – and a philosophical foundation of Stupak-Pitts -- begins with a case called Dandridge v. Williams, 397 U.S. 471 (1970). In Dandridge, a class action was brought on behalf of large-family recipients of what was then called welfare (AFDC) in the state of Maryland challenging the state’s $250 absolute limit on welfare benefits. It was conceded that the $250 cap meant that the state’s own calculated "standard of need" for these purposes of AFDC was higher than the maximum amount which the families could receive under the grant. (In simple English, that means that it was conceded the families could not survive on it.)
The lower court agreed with the plaintiffs that the $250 cap violated the Equal Protection Clause, in part because, it was found, AFDC recipients with large families were forced to "farm out" some of their children to other relatives who had fewer children if they were to receive enough in benefits to survive. They were forced to break up their families, a fundamental violation of their constitutional and human right to parent their own children. Yet this argument was utterly rejected by the Supreme Court despite the known fact of how it played out on the ground to separate families. It was rejected, with language that today, the day after the Stupak-Pitts was successfully added to the health care bill in the House on the grounds that it was a "necessary compromise" to save the entire bill:
The strong policy of the statute in favor of preserving family units does not prevent a State from sustaining as many families as it can, and providing the largest families somewhat less than their ascertained per capita standard of need. . .
. . .
Although a State may adopt a maximum grant system in allocating its funds available for AFDC payments without violating the Act, it may not, of course, impose a regime of invidious discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. Maryland says that its maximum grant regulation is wholly free of any invidiously discriminatory purpose or effect, and that the regulation is rationally supportable on at least four entirely valid grounds. . . The District Court, while apparently recognizing the validity of at least some of these state concerns, nonetheless held that the regulation "is invalid on its face for overreaching," 297 F.Supp. at 468 -- that it violates the Equal Protection Clause
[b]ecause it cuts too broad a swath on an indiscriminate basis as applied to the entire group of AFDC eligibles to which it purports to apply. . . .
But the concept of "overreaching" has no place in this case. For here we deal with state regulation in the social and economic field, not affecting freedoms guaranteed by the Bill of Rights, and claimed to violate the Fourteenth Amendment only because the regulation results in some disparity in grants of welfare payments to the largest AFDC families. . . . In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some "reasonable basis," it does not offend the Constitution simply because the classification "is not made with mathematical nicety or because in practice it results in some inequality." . . .
The problems of government are practical ones, and may justify, if they do not require, rough accommodations -- illogical, it may be, and unscientific.
Under this long-established meaning of the Equal Protection Clause, it is clear that the Maryland maximum grant regulation is constitutionally valid. We need not explore all the reasons that the State advances in justification of the regulation.. . . .[T]he Equal Protection Clause does not require that a State must choose between attacking every aspect of a problem or not attacking the problem at all. . . It is enough that the State's action be rationally based and free from invidious discrimination.
Shortly after Dandridge v. Williams was decided, still almost 40 years ago, in a case not really known outside the community of folks who advocate for the poor including (b) the human right (recognised virtually everywhere in the world but America, of the poor to access decent housing. This particular human rights travesty began with a US Supreme Court decision called James v. Valtierra, 402 U.S. 137 (1971). In Valtierra, the Supreme Court was confronted with Article 34 of the California Constitution, which prohibits any city from agreeing to permit the construction of any "low rent housing project" within its boundaries unless and until a voter referendum at either a special or general election confirms the desire of the municipality’s citizens that the housing be sited within its boundaries.
(Admit it, California liberals/progressives – most of you didn’t even know this legalized discrimination against the poor, based solely on the will of the electorate, has been the law in that great blue state of California for more than 50 years, did you?)
A "low rent housing project" under California’s Article 34 is defined as a project ‘being built for "low income people" which is "financed in whole or in part" by the federal government or a state governmental body, James v. Valtierra was brought by legal aid lawyers on behalf of residents of San Jose and San Mateo County (who most Californians recognize as being part of that bastion of progressivism, the San Francisco Bay Area) whose cities had defeated Article 34 referendums, thus preventing the construction of affordable housing within their boundaries.
The United States Supreme Court made very short work of upholding Article 34. The key language from the Supreme Court opinion:
[Housing advocates for the poor] suggest that the mandatory nature of the Article XXXIV referendum constitutes unconstitutional discrimination because it hampers persons desiring public housing from achieving their objective when no such roadblock faces other groups seeking to influence other public decisions to their advantage. But of course a lawmaking procedure that 'disadvantages' a particular group does not always deny equal protection.
The people of California have also decided by their own vote to require referendum approval of low-rent public housing projects. This procedure ensures that all the people of a community will have a voice in a decision which may lead to large expenditures of local governmental funds for increased public services and to lower tax revenues. It gives them a voice in decisions that will affect the future development of their own community. This procedure for democratic decision making does not violate the constitutional command that no State shall deny to any person 'the equal protection of the laws.
The state specifically argued before the Supreme Court that even if the majority of folks affected adversely were Black or Hispanic because the law was neutral on its face and because the state had its own legitimate interests which outweighed the interests of these groups: in fiscal stability and the fact that "low rent housing, per se, may be ‘bad’" (my personal favorite – not.) (You can listen to this morally offensive 39-year old argument yourself in this wonderful media tool provided to us courtesy of Oyez.) The advocates for the poor, on oral argument before the Supreme Court, put directly at issue the constitutional question of whether Article 34 was invidious discrimination against the poor and "for the most part in practice" against racial minorities, who are protected from discrimination including that which flows from disparate impact.
They still lost.
Again, in James v. Valtierra the factual record underlying what was going on at the time was clear: the vast majority of the low-income persons who needed this housing and were disproportionately affected by the decision were members of a suspect class under the Fourteenth Amendment; they were Black people and, at that time to a lesser extent, Latino. They were members of constitutionally protected groups for which government action adversely affecting them normally demands strict scrutiny.
Despite that reality, Valtierra was, as all economic cases are, was decided under a "rational basis" test: did the government have an articulable state interest in the legislation. Because the right at issue – to the construction of decent, safe, sanitary and affordable housing -- was not seen as a right that was not being restricted because of race, but because of income. The status of those seeking the housing as "poor people" was constitutionally irrelevant once it was affirmed that the legislature/people had a legitimate state interest in protecting "the public fisc" from in any way encouraging services that the representative body (in this case, the electorate) did not favor or support for reasons having to do with its "political viewpoint."
I would argue that this balancing of "the political will" against "human rights" is the same legal calculus that underlies Stupak-Pitts.
Nonsense, you say. Stupak-Pitts is an attack on women's humanity and equality. This is Different.
Well, yes, it is. But how is it any different from this attack on women's humanity and equality, that even as we speak women's advocates, progressives, liberals and even the President of the United States himself are reaffirming as perfectly OK as a benchmark for abortion rights -- just as they have for the past 32 years (proven through the benign neglect of so-called women's advocates)?
SEC. 507. (a) None of the funds appropriated in this Act, and none of the funds in any trust fund to which funds are appropriated under this Act, shall be expended for any abortion.
(b) None of the funds appropriated in this Act, and none of the funds in any trust fund to which funds are
appropriated in this Act, shall be expended for health benefits coverage that includes coverage of abortion.
(c) The term ‘health benefits coverage’ means the package of services covered by a managed care provider or organization pursuant to a contract or other arrangement.
SEC. 508. (a) The limitation established in the preceding section shall not apply to an abortion-
(1) if the pregnancy is the result of an act of rape or incest; or
(2) in the case where a woman suffers from a physical disorder, physical injury, or physical illness, including a life-endangering physical condition caused by or arising from the pregnancy itself, that would, as certified by a physician, place the woman in danger of death unless an abortion is performed.
. . .
(d) (1) None of the funds made available in this Act may be made available to a Federal agency or program, or to a State or local government, if such agency, program, or government subjects any institutional or individual health care entity to discriminate on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.
In case folks didn’t know, the above blockquote is excerpts from the current text of what is commonly known as the Hyde Amendment – originally passed 32 years ago. A law which has had no serious challenge since its original version was upheld by the Courts in case called Harris v. McCrae.
Anyone who wants to understand the reasoning behind, and likely constitutionality of, Stupak-Pitts need only read McCrae, which addressed the original version of the Hyde Amendment and its refusal to fund medically necessary abortions:
In Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484, the Court was presented with the question whether the scope of personal constitutional freedom recognized in Roe v. Wade included an entitlement to Medicaid payments for abortions that are not medically necessary. . .
But the constitutional freedom recognized in Wade and its progeny, the Maher Court explained, did not prevent Connecticut from making "a value judgment favoring childbirth over abortion, and . . . implement[ing] that judgment by the allocation of public funds." . . .As the Court elaborated:
"The Connecticut regulation places no obstacles absolute or otherwise in the pregnant woman's path to an abortion. . . The State may have made childbirth a more attractive alternative, thereby influencing the woman's decision, but it has imposed no restriction on access to abortions that was not already there. The indigency that may make it difficult and in some cases, perhaps, impossible for some women to have abortions is neither created nor in any way affected by the Connecticut regulation."
. . .In explaining why the constitutional principle recognized in Wade and later cases protecting a woman's freedom of choice did not translate into a constitutional obligation of Connecticut to subsidize abortions, the Court cited the "basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy. . . .
The Hyde Amendment, like the Connecticut welfare regulation at issue in Maher, places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy, but rather, by means of unequal subsidization of abortion and other medical services, encourages alternative activity deemed in the public interest. The present case does differ factually from Maher insofar as that case involved a failure to fund nontherapeutic abortions, whereas the Hyde Amendment withholds funding of certain medically necessary abortions. Accordingly, the appellees argue that because the Hyde Amendment affects a significant interest not present or asserted in Maher. . . the interest of a woman in protecting her health during pregnancy and because that interest lies at the core of the personal constitutional freedom recognized in Wade, the present case is constitutionally different from Maher.
. . .Because even the compelling interest of the State in protecting potential life after fetal viability was held to be insufficient to outweigh a woman's decision to protect her life or health, it could be argued that the freedom of a woman to decide whether to terminate her pregnancy for health reasons does in fact lie at the core of the constitutional liberty identified in Wade.
But, regardless of whether the freedom of a woman to choose to terminate her pregnancy for health reasons lies at the core or the periphery of the due process liberty recognized in Wade, it simply does not follow that a woman's freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices. . . .Although Congress has opted to subsidize medically necessary services generally, but not certain medically necessary abortions, the fact remains that the Hyde Amendment leaves an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all. We are thus not persuaded that the Hyde Amendment impinges on the constitutionally protected freedom of choice recognized in Wade.
The appellees argue that the Hyde Amendment is unconstitutional because it "penalizes" the exercise of a woman's choice to terminate a pregnancy by abortion. . . This argument falls short of the mark. . . . A refusal to fund protected activity, without more, cannot be equated with the imposition of a "penalty" on that activity.
(Perhaps some day a decision will come out that overturns this hateful decision. But I doubt that anytime soon will be the day, since after all this decision was written at a time where we did not have a 5-4 right wing majority on the high court.)
McCrae (and its predecessor, Maher), make plain that the Stupak-Pitts folks knew exactly what they were doing when they proposed the amendment.
Yet I question whether anyone who was supposedly watching for just type of thing really knew. I question it because nobody gives a damn about the ongoing existence of the Hyde Amendment and the ongoing danger to women’s lives that it continues to represent. They have chosen far more important poster children to fight for, which I believe reflects their choice despite all rhetoric which claims to care about what will happen to low income women if abortion rights are "restricted", to fight for those women with far more options economically. Those for whom emotional issues and convenience are far more important practical impediments to accessing the abortion right.
For example, everyone in the mainstream Left knows the name Becky Bell. Rebecca Bell was a teenager who got pregnant and did not want to tell her parents she was pregnant because she was afraid to disappoint them (there has never been any evidence that anything else motivated her; there is no evidence that she was abused, or mistreated, or even would have been rejected by her family). And she did not want to go to court for a judicial bypass, for similar reasons. So, Becky Bell got an illegal back-alley abortion – and died, tragically. The hue and cry over her death was legitimately huge and, to this day, mainstream pro-choice advocates fight virulently in her name against a viewpoint that the overwhelming majority of Americans (as in 80%) hold as confirmed by countless polls: that parents have a right to know if their minor child is pregnant and/or has an abortion. And, thanks to their advocacy, everyone knows the name of Becky Bell, if you’re all involved in pro-choice issues.
But how many know the name Rosie Jimenez?
Three months after the Hyde Amendment was passed, 27-year old Rosaura Jimenez became the first women to die because she could not pay for a legal abortion following the Hyde Amendment. Nobody knows how many women have died since, because it wasn’t too long after this that the government stopped requiring health care providers to keep track of such things as the number of women coming in presenting symptoms indicating that they were suffering the effects of a botched abortion procedure.
I haven’t heard a lot about the specter of women dying in connection with their abortion rights except as a which mainstream advocates say will come to pass if abortions are unduly restricted, have you? I certainly have not seen a whole lot of mainstream noise or discussion on the left about the question of how poor women can possibly exercise a right they can’t even pay for. Even though those advocates get the opportunity each and every year, because . Other than the Abortion Access Project, I don’t see any routine invocation of Rosie Jimenez in the fight about legal abortion.
If one doesn’t study, it is easy to feel that Rosie Jimenez’ death didn’t really happen. But then again, she was just another poor woman of color, who already had a 5 year old she could barely afford to take care (and, although most pro-choice sites don’t mention this, two previous abortions which had been funded on public assistance). Oh well, at least she wasn’t a welfare queen.
No matter what else you think of Stupak-Pitts, you have to admit that it was a very smart political gambit. The amendment does not, on its face, attempt to restrict abortion. It does not attempt to restrict insurance coverage for abortion. All it does is say that if an insurance plan in any way is subsidized or supported by public funds (i.e. part of the Exchange), that insurance cannot pay for abortions.
And indeed, if people are honest with themselves they'd admit that’s really why folks are screaming bloody murder as if there is something special about Stupak-Pitts: the bill's prohibition on the use of a "workaround", i.e. the expenditure of private funds to avoid the intent of the bill to further a specific public policy (disfavoring abortion.)
But if folks are indeed honest with themselves, they'd realize that Stupak-Pitts is basically a case of what being good for the gander being equally good for the goose. This type of restriction has also been largely acquiesced to by the Left before – and again on the backs of the poor. This restriction has existed in the area of federally funded legal services for the poor for 14 years now, in the form of what is called the "program integrity" regulations that were passed in 1996 (we all know the Republican president that was in office then: his name was William Jefferson Clinton:)
1610.4 Authorized use of non-LSC funds.
(c) A recipient may receive private funds and use them in accordance with the purposes for which they were provided, provided that the funds are not used for any activity prohibited by the LSC Act or prohibited or inconsistent with Section 504.
This attack on legal services was a brainchild of Reagan, to be sure, but not fully effectuated until the Clinton administration. I repeat: the LSC Regulations not only prohibit the federal funding which goes to LSC from being used for certain purposes, they also prohibit the use of any privately-acquired funds for any of the purposes for which you cannot spend the federal money.. There are lots of nefarious types of work which are considered "activities prohibited by the LSC Act" or "prohibited or inconsistent with Section 504", but I just want to highlight two of them:
Abortions and Abortion litigation
There is, however, one key difference between the program integrity regulations of the LSC Corporation and the Hyde Amendment:
There has been NO let up on the legal challenges to the constitutionality of the LSC regulations by the public interest bar: they have fought the good fight on all fronts to overturn this law, bringing repeated lawsuits, ever since it was passed.
The result? Slowly, but surely, these provisions of the LSC Act are being chipped away. Yes, there have been more losses than wins, in the courts. But there have been wins, too – and upon the election of President Obama, the community mobilized quickly and is currently aggressively advocating for the complete overturning of these regulations and enabling limitations in the LSC Act outright as the travesty of justice – the trammeling on human rights – they represent.
I haven’t yet got my notice about the similar effort to overturn Hyde.
But I’ve had 16 e-mails in the past 72 hours about the horrors of Stupak-Pitts as "an attack on women, "especially" "low income women."
(Who do these folks think they are kidding? Why now all of a sudden are folks screaming about poor women when nothing in Stupak-Pitts makes matters any worse for poor women than it already has been for 3 decades? I HATE when folks on the Left use people they could care less about as their poster children because they are afraid to make an honest case on their own merits.)
Yes, the impact of Stupak-Pitts is indeed far broader than the limits imposed upon the abortion rights of the poor under the Hyde Amendment. Because instead of just prohibiting those poor stereotypical welfare mothers from getting an abortion paid for (and 30+ years provides that nobody really cares about them anyway) it prohibits use of a subsidized health insurance policy from being used for one. That merely restricted government funding support for abortion, without proscribing the right itself. Remember the language from the cases I’ve mentioned above, which reflect two clear legal principles. First, at least under existing law, the government has a legitimate state interest in encouraging childbirth (established without any doubt by Planned Parenthood v. Casey in 1992 when it overruled Akron v. Akron Center for Reproductive Health and Thornburg v. College of Obstetricians and Gynecologists and reduced the judicial review standard established by those cases for abortion restrictions from the heightened scrutiny first established by Roe v. Wade to "undue burden", even as Casey continues to stand for the proposition that the government cannot completely ban access to abortion services before viability.
Second, and this is the reason I feel that the odds are just as good that Stupak-Pitts will remain in the health care bill as it will be deleted from it, the law has never wavered that the government has no duty to make it easier for someone to access a right, even one of constitutional dimension – and definitely not if a government funding mechanism is involved. (Now hopefully people understand why I started this abortion diary, my second ever, with a discussion not of abortion, but of Dandridge and Valtierra above.) Justice O’Connor’s plurality opinion in Casey itself confirmed this is the law even as it relates to abortion:
Consistent with other constitutional norms, legislatures may draw lines which appear arbitrary without the necessity of offering a justification. . . .As our jurisprudence relating to all liberties save perhaps abortion has recognized, not every law which makes a right more difficult to exercise is, ipso facto, an infringement of that right. An example clarifies the point. We have held that not every ballot access limitation amounts to an infringement of the right to vote. Rather, the States are granted substantial flexibility in establishing the framework within which voters choose the candidates for whom they wish to vote. . .
The abortion right is similar. Numerous forms of state regulation might have the incidental effect of increasing the cost or decreasing the availability of medical care, whether for abortion or any other medical procedure. The fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it. Only where state regulation imposes an undue burden on a woman's ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause.
Remember, this language was written by a WOMAN who knew that the restrictions and limitations on the abortion right being established through a declaration that the state’s interest in pregnancy commences not at viability, but at conception, equal to a woman’s from the moment of conception, did so knowing that the disproportionately affected group, women, were not going to get better all by themselves: she'd already seen enough cases to know that by then. It didn't matter.
When it came to the "fundamental right" to an abortion, it was just another right that could be deemed completely conditional upon the ability to actually pay for exercising it.
Fundamentally, IMO the fight over abortion rights in the United States has always been about the American idea that rights may legitimately be conditioned on wealth, and limited to the "deserving", which this country has always defined based on wealth. It has been as much a fight about our country’s moral judgment about class, race and economic standing as a proxy for "rights", not over the issue of womanhood and women’s human equality per se. Of course, gender is a valuable proxy for these things, since it is women, particularly women of color and immigrant color, who are more economically vulnerable within the operation of the patriarchy.
I put this idea forth for consideration not to dismiss the validity of the idea that misogyny may also play a role. I say this because for thousands of years, one can document the clear operation of the patriarchy, yet it is only the last 150 years or so, right around the rise of immigration and the Industrial Revolution, that you see systematic efforts to legally prevent women from terminating their pregnancies in this country. This reality of the history of abortion in the United States undercuts the argument that it has all about controlling and oppressing women. (As does the reality that many of the earliest women's equality advocates were anti-abortion.)
IMO, this fight about abortion rights is fundamentally, an argument about the values our country elevates: values that protect "rights" only for those who have, not those who don’t. Including the "right" to an abortion. Who was the most strident advocate of anti-abortion laws, initially? Doctors. Doctors who pushed against "unregulated midwives" and "dangerous abortions" at the same time. Is it really arguable, then, that the history of anti-abortion in THIS country is about protecting economic bottom lines?. Yes, it is indeed a fight about women, too, but only because this particular economic fight involves a biological function that only women possess – the ability to become pregnant. But it is not clear to me that it has ever been motivated by any generalized need to attack and control women across the board, those few Neanderthals who feel that way accepted.
And if you still don’t believe me when I say this fight is about money as a proxy for human value, ask yourself this:
Where in the Health Care reform bill does it guarantee the constitutional right to access birth control services through their health insurance? Indeed, where in the Health Care reform bill does it even mandate that "health insurance" be affordable? Let alone "health care?"
Let me know when you find those provisions in our "historic" health care reform bill.
You won’t find them, because neither Congress nor the courts have ever blinked when it has come to enacting fiscal legislation (and that’s what health care reform is, at bottom, since nothing in the bill even attempts to guarantee a generalized right to ) that cuts out some people at the expense of some others. Our country, including many on the Left has continued to support that with nary a whimper. Our own side of the political aisle on abortion has supported that through benign neglect.
So now middle class and upper class women have reaped the whirlwind of their failure to show they give a damn about the poor (instead of just saying they do), when it came to not only how they were going to access the "right" to abortion that supposedly was guaranteed to them by the Constitution, but how to help them when for individual reasons they didn’t want to exercise that right.
Given that, I would argue that anyone who keeps reducing the analysis of why abortion rights are being eroded to that simplistic idea (they don’t trust/hate/want to control/want to punish women) is missing the forest for the trees. I am not speaking about what occurs in other countries – those countries have a different history than ours, and different cultures than ours, so their abortion fight may or may not be more directly tied to cultural control over women than here. But in this country, it’s been a cultural calculus based on economic standing that determines who is "worthy" to have their reproductive and other rights protected by government – including through Health Care reform – and whose rights are deemed less valuable and, thus, expendable in the name of politics.
Until we change the narrative, and shift the strategy for securing abortion rights from a narrative that focuses only on abortions to a more frontal attack the foundations of our cultural consensus about the relationship between poverty and parenting, race and "normalcy", "choice" and "rights"; until we start tearing down all laws which use money and economic status to determine access to human rights of all kinds (starting with the Hyde Amendment but also those that deprive folks of their human right to decent housing and to subsistence as a condition of citizenry), with the same zero tolerance rhetoric with which we we attack laws that continue to reduce a woman’s theoretical abortion right to practical nothingness, I am afraid we will continue to see precisely what we are seeing.
Through Stupak-Pitts, the Overton Window got moved just a little bit. Now, it is no longer those lazy welfare recipients and crack heads that shouldn’t be out there fucking and running the risk of babies "they can’t afford." It’s the working class and middle class women that don’t have $500 just lying around if and when they get pregnant, because they no longer can count on access to affordable insurance benefits to help ease the economic burden. We are rapidly coming full-circle, where it is only the wealthy and well connected women who get the benefits of the human right first eloquently articulated in Eisenstadt v. Baird:
If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.
It is reproductive justice, not abortion, that matters most. Abortion is just one part of the equation. Reproductive justice for women cannot be achieved by demanding orthodoxy when it comes to our uteruses, whether in terms of our beliefs or our behavior (and the last 30 years have proven conclusively that no such orthodoxy of thought is possible, not at this time in this country.) Thus, reproductive justice, including the right to legal and safe abortion, is achievable only when we insist that law, including Health Care reform, ensure that we as human beings can access the full panoply of our reproductive human rights without worrying about how to pay for them. Contraception, Childbirth, Childrearing, and Termination of Pregnancy through legal and safe abortion.
But here’s the political reality which must be confronted. Despite all arguments about the right to "choice", when it comes to the majority of Americans, most support some limits on the abortion right just as they have ever since Roe v. Wade was decided, unless it involves the life of a mother. We can continue to piss in the wind and expend all our political energy arguing with vigor why this particular abortion viewpoint is rationally "wrong", or "bad" or "misogynist". I predict we’ll keep losing if we do.
Or, we can shift strategy to developing arguments that justify maintaining access to legal abortion for women that do not depend on trying to make people change their minds about the ethics or morality of the millions of abortions which occur which are inarguably not medically necessary.
What are some of those arguments? That would make about 10 more diaries and I am going to called out for the length of this diary as it is. But most of the ones that I believe will ultimately win this fight for women and which have been given short shrift by the pro-choice left, which continues to elevate what Dorothy Roberts refers to as individual "negative liberty" (i.e. the right to be left alone) over the other principles at the heart of the abortion fight politically, are grounded in the idea of Reproductive Justice:
Reproductive Justice is the complete physical, mental, spiritual, political, economic, and social well-being of women and girls, and will be achieved when women and girls have the economic, social and political power and resources to make healthy decisions about our bodies, sexuality and reproduction for ourselves, our families and our communities in all areas of our lives.
Notice that the word "choice" is nowhere to be found. That’s not likely accidental. The rhetoric of "choice" simply has proven not to resonate with Americans in a way that ensures they will protect access to legal abortion for all women, which everyone with any sense must concede is necessary and a human right
Even now, the rhetoric of "choice" continues to be utilized most often by the mainstream women’s movement, whose leadership remains largely white and largely middle class despite all efforts by feminist groups comprised of women of color over the last 3 decades to build a successful coalition and advance a different perspective on the problem. It has been the constant rallying cry. Yet IMO you never get to see either the Hyde Amendment 32 years ago or to Stupak-Pitts today enshrined in law if the rhetoric of choice had been successful.
It hasn’t. It has largely failed, if I judge by the accelerating erosion of abortion rights since Roe and by the sense of Deja-Vu I get reading Stupak-Pitts.
There has been some study about how we got to this place. I personally find this explanation by women’s historian Rickie Solinger to be one of the most compelling:
I have thought a lot about the limitations of "choice" as women’s special guarantee. I worry about the consequences of this: the promise that women can decide for themselves whether and when to become mothers is expressed by the individualistic, market-place term, "choice." How can users of such a term avoid distinguishing, in consumer-culture fashion, between a woman who can and a woman who can’t afford to make a choice? I worry about what aspects of "rights" are masked or lost when the language of choice replaces the language of rights at the heart of women’s special guarantee.
I use the term "rights" to refer to the privilege or benefits of being a human — and specifically a woman— in the United States. "Rights" usually refers to privileges and benefits that a person can exercise without access to any special resources, such as money. . .
But "choice" has come to be associated with possessing resources. Many Americans believe that women who exercise choice are supposed to be legitimate consumers, women with money. This is true even when the choices they exercise, such as the choice to be a mother or the choice to end a pregnancy, might be considered a very fundamental issue of rights.
Distinctions between women of color and white women, between poor and middle-class women, have been underscored in the "era of choice" partly by defining some women (rich and middle class) as good choice-makers and other women (the ones in the reviled categories) as bad choice-makers. During a time when babies — and pregnancy itself— have become ever more commodified, only "good" choice-makers have a "legitimate" relationship to babies and motherhood. The other woman is "illegitimate" mothers because without resources, they are illegitimate consumers.
The use of the concept "choice"— focusing on what a given, individual woman decides to do, reproductively— encourages us to ignore the social and economic context in which women are fertile. We look at the individual woman and her choices while we ignore the content and the consequences of public policies, and the impacts of racism and very low minimum wage rates on the lives of women who may become mothers. These factors arguably have a lot more to do with the quality of any given woman’s mothering than her own "choices."
We say that women who can’t give their children all the advantages and have babies anyway are selfish, and they are bad choice-makers. We say that motherhood should be a privilege reserved for middle-class women, the ones who can afford to be proper mothers. And suddenly we have backed ourselves into a corner. Suddenly we are supporting an economic test for motherhood in America.
If you close your eyes and head to your quiet space, perhaps you can hear echoes of discussions about abortion you have had in the past, where everyone seems to be in agreement about how some women are "stupid" for not having an abortion when they get pregnant –whether because they have no money, no education, no "plan." You can certainly hear the many arguments about why it is "best" to have an abortion under some circumstances. I’ve made them myself. And you can perhaps hear our own side’s defense of laws that started creeping on the books beginning in the 1990’s that essentially made women guarantors of their pregnancies: the "anti-crack baby" laws, the laws authorizing covert drug testing of women, the ones that increasingly allowed the choice of motherhood to be taken away on the grounds of "neglect." Or at least we should hear them. And we should be unflinching in admitting honestly that most of this didn’t bother the Left too much. After all, all this stuff was affecting only women who really "should have just had an abortion", anyway.
I wrote a diary four years ago, now, about what I perceived as the nexus between the failure of the mainstream women’s movement to fight against all of these types of laws – that specific diary was about the laws which sent (usually) Black women to prison for "murder" or "child abuse" for behavior while they were pregnant -- and the failing fight to secure legal abortion. But certainly, I’m not the first person to have raised the issue. Women of color who were reproductive rights activists have been screaming at the top of their lungs about this for decades – and being completely ignored by the left and certainly by the abortion rights movement.
Many of these scholars concluded long ago that the narratives most utilized by many of those who are the most strident when it comes to advocating for the right to a legal abortion carry with them highly classist (and at times racist) assumptions about motherhood and about what women are, or are not, worthy. (Talk about patriarchy – yet I’m hard pressed to find a whole lot of discussion about it.)
Hopefully, anyone who feels as much sadness, anger and despair as I do about Stupak-Pitts will now think seriously about trying to do something different to secure abortion rights – since hopefully we all know what the definition of insanity is. Something different and radical: take abortion rights out of the center of their analysis and adopt an unwavering holistic viewpoint of what the problem to be solved really is: reproductive justice for women. One can start by taking good, long, and most importantly open-minded gander at the unwaveringlypro-choice arguments formulated in works like the following:
Killing the Black Body: Race, Reproduction and the Meaning of Liberty, and everything else written by lawyer and professor Dorothy Roberts for the past 25 years. To me, Roberts is the starting place for anyone who is committed to securing abortion rights access and REALLY wants to understand in earnest why liberals and women find ourselves where we are today in terms of the increasing legal tenuousness of the right. Yes, this particular book is about Black women. However, as I’ve noted in previous diaries and comments, much of the law and social policy which allows the country to now try and jettison working class and middle class’ women’s right to an abortion was built on the uteruses of Black women and societal attempts to control their reproduction, with nary a whimper by those groups that were supposedly out there protecting women, including most liberals.
Pregnancy and Power, and Beggars and Choosers: How the Politics of Choice Shapes Abortion, Adoption and Welfare in the United States, both by Rickie Solinger. Solinger is the best source for analysis of the weaknesses in the narrative of "consumer choice" advanced by mainstream feminism and of how it has been used as a vehicle through which women’s reproductive rights are systematically being limited.
Anyone who is serious should also learn about Asian Communities for Reproductive Justice, the organization that wrote the defintiion above; SisterSong, the successor umbrella organization to what was one of the earliest coalitions of Black pro-choice advocates - the earliest to recognize the political limitations of, and reject, the 'choice' narrative as grounded in classism and racism; and the website of National Advocates for Pregnant Women, an organization founded by a simply BADASS woman named Lynn Paltrow, who figured out at least 2 decades ago what the mainstream women’s rights movement seems to simply refuse to hear: the political fight over abortion has been used as a diversion tactic – to further a far larger agenda which diverts societal resources and wealth to a narrow class of beneficiaries by keeping those who actually should be in coalition fighting over abortion in a vacuum.
For me, I also think that it is important to listen to those who you might otherwise deem "the enemy", because it is only by listening to them that you begin to understand how rhetoric/marketing matters to the debate over abortion. I’m not advocating parking one’s self at the doorsteps of the National Right to Life Foundation or Concerned Women of America and asking for a pow-wow. I’m suggesting that advocates look into coalitions with groups like the Religious Coalition for Reproductive Choice, a pro-choice group also made up primarily of people of color, which has ever since Roe v. Wade worked with those with moral misgiving based on their understanding of religion when it came to abortion; and have developed very effective arguments which put God at the center of the analysis (necessary if you're actually going to even try to persuade a person whose objection is religious) through their "Prayerfully Pro Choice" campaign.
If we don’t shift tactics, if we don’t shift rhetoric, if we continue the same old same old as if it’s just a matter of people not hearing the arguments the first 1,000 times (instead of the truth, which is that they heard them just fine, they just weren't persuaded!) I am highly pessimistic that the Senate will do anything about Stupak-Pitts in reconciliation unless their literal political lives are on the line. The Senate is already responsible for the watered down health bill as it is – because of its commitment to seeing that the health insurance industry would be protected financially, and its refusal to approve any of the plans and amendments put forth that would have guaranteed access to health care by providing some meaningful type of public option (meaningful in the sense that something more than 10% of Americans would have access to it.) This amendment reduces the cost of overall health care, while at the same time in no way legally restricting access to abortion. For those Democrats who believe they cannot win in their districts and be seen as too "pro choice", you couldn't have asked for a better Christmas present - they can truthfully say in the usual 30 second soundbyte that Stupak-Pitts in no way ends our our country's commitment to ensuring access to abortion for women.
If you can pay for it, that is.
And if you can’t? Well, as a wise commenter in one of the many Stupak-Pitts diaries put it this past Sunday, who questioned (largely to crickets; folks are so good here at ignoring what makes them uncomfortable!) why all the handwringing now when some version of Hyde has been on the books for 30 years and is renewed each and every year?
Welcome to equality.
I’ll end the diary with some words from a couple of pro-choice activists, women who know (or knew) what is at stake and were not so selfish as to think that somehow their upper and middle classes uteruses and a desire to keep a baby out of them were any more important than the rights of other women to control their own, including through having their babies.
First, Lynn Paltrow, who as I mention above is about as badass a pro-woman advocate as you are ever going to find, who just happens to be white and middle class but Gets It, nonetheless:
I started my career defending a woman’s right to choose abortion and now run National Advocates for Pregnant Women, an organization that works on behalf of pregnant women and families. No, I haven’t had a political or religious conversion. What I have had is the opportunity to see how the abortion issue distracts us from shared political and family values. While politics and media like to divide the world into neat bundles of opposites—pro choice vs. pro life—the reality of women’s lives simply doesn’t fit these patterns. For example, it is widely known that women who profoundly oppose abortions still sometimes have abortions. What is rarely discussed is the fact that most women who have abortions are already or will someday become mothers. . .
The abortion issue divides us and distracts us from common threats and threads. . . . Birthing rights activists and abortion rights activists, pro-choice and pro-life, Republicans and Democrats all need to work to change the conversation. We will continue to disagree about abortion, but together we must acknowledge that anti-abortion laws are being used to hurt women who want to carry their pregnancies to term and that all of us are harmed by an overriding U.S. policy that fails to value mothers and families.
Nobody, however, IMO can top the prescience of Lucinda Cisler, who wrote this 40 years ago, a fact which should haunt the Left and mainstream women’s groups right now as they struggle to find a way to eradicate Stupak-Pitts (knowing it's likely to be upheld if it stays in the final heaslth care reform package, because the Democrats in Congress know that with the economy not being dramatically recovered come next November, the electorate is likely to start throwing people out on their ears take no prisoners, so that ANYTHING they can tout as "health care reform" simply MUST pass this year). Lucinda Cisler made the problem plain. She warned of the risk inherent in selling some women down the river to secure abortion rights for others. And, she did it before Roe, before Hyde, before Stupak-Pitts, and before each and every attack on abortion that has led the right to legal abortion down the slippery slope towards extinction for the past 30 years:
One of the few things that everyone in the women’s movement seems to agree on is that we have to get rid of the abortion laws and make sure that any woman who wants an abortion can get one. We all recognize how basic this demand is; it sounds like a pretty clear and simple demand, too—hard to achieve, of course, but obviously a fundamental right just like any other method of birth control.
But just because it sounds so simple and obvious and is such a great point of unity, a lot of us haven’t really looked below the surface of the abortion fight and seen how complicated it may be to get what we want. The most important thing feminists have done and have to keep doing is to insist that the basic reason for repealing the laws and making abortions available is justice women’s right to abortion.
Everyone recognizes the cruder forms of opposition to abortion traditionally used by the forces of sexism and religious reaction. But a feminist philosophy must be able to deal with all the stumbling blocks that keep us from reaching our goal, and must develop a consciousness about the far more subtle dangers we face from many who honestly believe they are our friends.
In our disgust with the extreme oppression women experience under the present abortion laws, many of us are understandably tempted to accept insulting token changes that we would angrily shout down if they were offered to us in any other field of the struggle for women’s liberation. . .
The abortion issue is one of the very few issues vital to the women’s movement that well-meaning people outside of the movement were dealing with on an organized basis even before the new feminism began to explode a couple of years ago. Whatever we may like to think, there is quite definitely an abortion movement that is distinct from the feminist movement, and the good intentions of most of the people in it can turn out to be either a tremendous source of support for our goals or the most tragic barrier to our ever achieving them. The choice is up to us:
Are the mainstream folks who are screaming from the rooftops over Stupak Pitts in the name of for "women’s equality" going to accept being bought off, yet again? If so, do me a favor: don’t complain when this battle to keep abortion safe and legal is still being fought, 40 more years from now.
It will be just same old, same old.