MediaGirl has written a comprehensive diary on the case of
Gabriela Flores that is on today's recommended list, as well it should be. In the comments, Moiv mentioned the case of Regina McKnight in passing. Someone else expressed surprise, saying that they did not know about the McKnight case. The rest of the discussion was more of the same old same old argument about Republicans, women hatred, pro-lifers, politics in the name of God, Casey's pro-life stance, and how the country is in the hands of a cult ever since the ascension of George W. Bush.
I admit that my reaction to all this was anger. Angry at the expressed suprise. Angry at the fact that we're still saying all the same things and spouting the same party lines, all focused on abortion. And angry that the only thing that even generates this much rage in progressives where women's reproductive rights are concerned is abortion.
When in fact Ms. Flores' abortion dilemma would likely not exist at all had we just gotten 1/2 as mad, 1/2 as determined, and 1/2 as dogmatic about Regina McKnight and another woman named Cornelia Whitner.
Make no mistake, Gabriela Flores' situation is indeed horrid. Ms. Flores is facing a maximum sentence of 2 years in jail for her misdemeanor (not felony) choice to self-abort. The mainstream pro-choice movement is rightfully screaming bloody murder about the indisputable harm that will come to her life, and her children's, if she is convicted. However, I have to wonder: why does Ms. Flores' situation causes so much political ire in progressives, yet far more harmful and dangerous cases for women's rights like Ms. McKnight's were largely ignored years ago when they would have made a difference in the legal environment that Ms. Flores is now facing? Who cried about what would happen to Regina McKnight's children (she left two children behind when she went to prison, and was pregnant with another)? Who called the people who sent her to jail inhuman or crazy? Why is Ms. McKnight's situation, against which Ms. Flores' pales in comparison, only just now being cited as an example in the fight for women's survival, but only after Ms. McKnight has already served 6 years in prison and has another 6 to go before she is even eligible for parole?
Perhaps it was because she was just a poor, mentally disabled, African-American crackhead.
But she was also a woman, under attack because of her reproductive function, except the attack was to punish her for trying to become a mother, instead of trying to avoid becoming one. The exact type of attack on women's reproductive rights that has gone on in various forms, largely to the turned-back of progressives and women's rights movements for the past century.
For those who do not know the underlying facts of the McKnight case, they are important to understand my anger.
Regina McKnight is currently serving a 20 (not 12) year sentence for murdering her stillborn infant, her 1999 sentence having been affirmed by the South Carolina Supreme Court in 2003 (their decision is on pages 42-63 of the Petition for Certiorari filed following the SC supreme court decision). That's Murder with a Big M. Not manslaughter. Murder - the intentional and depraved taking of human life.
Ms. McKnight was charged and convicted of murder when, post-partum, she was found to have cocaine in her system, as was her stillborn babygirl, Mercedes. Despite her undisputed grief at the death of her child; despite her particularly downtrodden condition at the time of her pregnancy (young, homeless and mentally disabled); despite the state conceding both that Ms. McKnight had several medical conditions including syphilis which could have led to stillbirth of her daughter Mercedes, and that it could not prove beyond a reasonable doubt that crack usage caused the stillbirth, the state argued to the jury that if they found any evidence of cocaine in Ms. McKnight's system or the baby's, they must convict her of murder.
Since they did, they did. After only 15 minutes of deliberation.
This horrific trial outcome was upheld, repeatedly, the courts. All the way up to the Supreme Court, which denied Ms. McKnight's petition for a writ of certiorari.
As Bob Herbert noted in his editorial 4 1/2 years ago, the legal movement to control women's right to choose pregnancy through criminalizing their "bad behavior" during pregnancy, which culminated in Regina McKnight being deemed a murderer had gone on for more than a decade, targeted almost exclusively at drug addicted women primarily poor, primarily Black. And nobody in the progressive movement or reproductive rights movement or women's movement cared to prioritize the fight for their reproductive rights, as Dorothy Roberts noted in a speech to Planned Parenthood more than a year before the McKnight case was decided. After sharing the story of Lori Griffin, a mother-to-be who ended up in 1989 delivering her baby with her hands and feet shackled to her labor bed because she tested positive for drugs while seeking needed prenatal care, Roberts discussed her opinion, shared by many, about why:
. . . .[H]istory has shaped the way we think about reproductive liberty. Most Americans have an understanding of reproductive freedom that is quite comfortable with the stories of Lori Griffin, Yvonne Thomas, and C.K. First, most Americans think that reproductive freedom is coextensive with the right to abortion. Policies that deter women from having children don't even register. It does not require the government to assist women in their reproductive choices - so, the state has no obligation to pay either for poor women's abortions or for the cost of delivering and raising a healthy child. This understanding of liberty does not take into account the many social and economic forces that deny women the ability to make true reproductive choices. Finally, many people imagine reproductive freedom based on the experiences of white middle-class women and discount the value of reproductive self-determination for women like the ones I've talked about. Reproductive freedom, then, covers just enough to protect the choices of the most privileged women in our society and offers little for poor women, especially poor women of color.
IMO therein lies the problem, and the genesis of the case of Gabriela Flores. If one is honest, one must ask whether we're here today in large part because of what Dorothy Roberts and others claim was the political dismissal of reproductive choice issues affecting poor and Black women in favor of abortion rights. For example, as the list at the bottom of the attached article shows, the only groups who chose to fight for Ms. McKnight as amicus when it really mattered were the ACLU, doctors, organizations opposed to the war on drugs, and those advocating for the rights of the disabled (Ms. McKnight suffers from borderline mental retardation). There were no pro-choice groups on her amicus list.
No NOW.
No Feminist Majority.
No Planned Parenthood.
No NARAL.
Of course there was were the Black Women's Health Collective and Women's Law Center, and a then-very small women's advocacy group called National Advocates for Pregnant Women founded by an incredible woman, Lynn Paltrow. Thes were, however, only then-small feminist organizations with no clout on the national political stage to wield and no well-established attorney-client relationships like those possessed by the mainstream abortion and birth control rights groups that could marshal the best and most resource-laden attorneys in the country to fight on their behalf. It is therefore highly ironic that now, years later, folks are now suddenly mentioning Ms. McKnight's name as an afterthought poster child of the current attack on "choice", as a coda to the Gabriela Flores case.
But Ms. McKnight is not an "oh, by the way this too" situation when we're talking about women's reproductive choice. Instead, Ms. McKnight's case, along with another (in)famous one, involving a woman named Cordelia Whitner, is a linchpin choice case that readily explains, to those willing to look at the big picture and not just focus on abortion, what is now faced by Ms. Flores.
Even then, the story of Gabriela Flores does not begin or end with Ms. McKnight. One could look to again to South Carolina, which which gave birth (figuratively) to a little case called Ferguson v. City of Charleston, South Carolina. In it's 2001 Ferguson decision, the US Supreme Court finally invalidated the long-standing secret urine testing program implemented by the state against Black pregnant women for at least the preceding 15 years - the one that resulted in Lori Griffin laboring and delivering in shackles.
Interestingly, in contrast to the "shrug" approach these groups took to the McKnight several years later at the lower appellate level and subsequent, the Ferguson case boasted as amicus curiae a plethora of national feminist and pro-choice groups, indicating that they did find the issues in Fergusonimportant enough to marshal their legal and political resources for. They fought valiantly as amici at each appellate level in the courts - and, although they did not serve as lead counsel, won.
Of course, that victory didn't end the practice of punishing pregnant women for carrying to term despite their imperfections, or even slow it down. Thus, two years later, the same US Supreme Court denied certiorari to Regina McKnight, to the virtual silence of the same pro-choice and feminist groups that previously rose to fight in Ferguson.
Why?
Is it, perhaps, the fight for women's lives undertaken in Ferguson was an outlier? Can it be because the marshaling of across-the-board legal and political resources by pro-choice and women's rights groups came almost a decade after after the realroot cause of both Ms. Flores' and Ms. McKnight's problems legal was born, in a little case known as State (of South Carolina) v. Whitner?
The facts of the Whitner case are as follows. In 1992 - 2 years before Planned Parenthood v. Casey was decided, and nearly a decade before Ferguson v. South Carolina, Cornelia Whitner became the first South Carolinian woman convicted for criminal child abuse (a far more serious criminal charge than Ms. Flores currently faces) for delivering a healthy child despite a raging addiction to crack during her pregnancy. Ms. Whitner's conviction rested on an interpretation of a then-still relatively new feticide law intended to address lethal violence by men against their pregnant partners. In Whitner the South Carolina Supreme Court declared that viable fetuses were legal persons whose alleged "victimization" by their mothers before they were born, even through legal activity such as alcohol consumption or cigarette smoking, could be punished criminally.
So, Ms. Whitner was convicted and sentenced to 8 years in prison, for giving birth to her healthy child. And when she begged for treatment at her sentencing the judge rebuffed her request.
It is the Whitner case that laid the legal foundation for today, because it is that case which led to the declaration that viable fetuses have rights of personhood in South Carolina that can be enforced in the criminal courts. The original conviction was 2 years before Casey, which everyone claims was was the really the "beginning of the end" where TRAP laws and women's reproductive freedom are concerned. It was 8 years before Laci Peterson's death caused mainstream's women's advocates to finally develop some concern that there was a relationship between accusations of fetal harm and abortion rights inherent in the fight for "Laci and Connor's Law" aka the Unborn Victims of Crime Act.
Yet that wisdom did not extend to the precursors of both: the targeting of primarily Black pregnant women for prosecution who chose to give birth instead of abort even though they were suffering from drug addiction.
Oh, BTW: the only nationally-funded and prominent mainstream pro-choice organization to sign onto as amicus on behalf of Cornelia Whitner was NOW's Legal Defense Fund, now called Legal Momentum.
No Planned Parenthood.
No NARAL.
No Feminist Majority.
Why? Is it perhaps because one of the articulated long-term effects of the incarceration policy furthered by the Whitner decision is that drug-addicted women are now more likely to seek abortion instead of carrying to term, where going to term may well mean going to prison for a very, very long time? Can it be because in Ferguson the central issue fought over was "I'm a woman who has a right to privacy so you have no right to demand to interfere with my privacy by secretly drug testing me?" versus a key issue argued in both McKnight and Whitner: "Why is the state punishing some women more harshly for carrying to term than if they had illegally aborted their pregnancies?"
Is the problem, as Dorothy Roberts and others posited, that pro-choice and women's advocacy groups seem only care about "negative liberty" for women (the right to be free from the state when deciding, if, how and when to get pregnant) and not real liberty, which ensures that a woman can truly choose between the equally valid options of abortion and carrying to term under all circumstances?
Those are not facetious or sarcastic questions. And, IMO, answering them in our hearts, each one of us who claims to be progressives fighting for women's lives, is critical - because if we don't, despite much wailing and gnashing of teeth, the right wing will continue to slowly but surely strip all women's reproductive choice from them despite people's best efforts and good faith, however misdirected through its exclusive focus on abortion rights.
So now, after McKnight, Ferguson we have come full circle, to Gabriela Flores. This is not surprising. The pro-choice movement ignored the pleas going back to the mid-1980's of womanists that the key issue (criminalization of pregnant women whose conduct during pregnancy may, or may not, lead to fetal harm) was also an attack on women's reproductive choice that would ultimately spill into the abortion access issue, too.
But make no mistake, it is the Whitner and McKnight cases, neither of which involve abortion rights, that have laid the legal foundation for what is being done to Ms. Flores today. After all, both cases are also about "choice". The choice of drug addicted mothers to carry their pregnancies to term (and in both cases, to deliver healthy children) despite their drug use, versus a "choice" to abort.
Where was the national progressive outrage over Whitner and McKnight? Where were the screams that women were being reduced to slavery by making them guarantors for the outcome of their pregnancies? Why did the collective outrage of most of the groups that claim to have the fight for women's equality at the center of their mission wait until it was only about abortion, rather than reproducitve justice for women whose choice was not to have an abortion? I don't know the answer to that question. What I do know is that the mainstream reaction we saw to McKnight and Whitner is quite similar to the reaction to forced sterilization law, to forced Norplant insertions, to everything else that disproportionately affects poor and minority women's reproductive choice, yet has not a damned thing to do with abortion (at least, not on the surface where most folks' vision about reproductive justice stops cold.)
Maybe Ms. McKnight got no serious political support from the pro-choice movement because she did not choose abortion under circumstances where many people would have argued she should have, and was left the grieving mother of a dead child, rather than feeling relieved like Ms. Flores did when she managed to end her pregnancy as she desired despite all bullshit obstacles placed in her way at a practical level (money, language, access and now, the criminal law itself.) Maybe Ms. Whitner got limited amici after she'd already served 5 years of her 8 year sentence, at the US Supreme Court level (her cert petition was denied) because the reproductive rights of women who choose to have children are less important than the reproductive rights of women who go out of their way to avoid that status, temporarily or permanently, unless everything is otherwise Okie-Dokie in their lives.
Or maybe it's simply that the entire fight for women's lives has focused on too much on protecting the free will of privileged women, instead of recognizing that the groundwork for the parade of legal horrors we see happening right now in terms of attempted limits on the abortion right was laid on the uteruses of oppressed women who wanted to deliver children, and the largely ignored and historically largely successful efforts to limit their rights to give birth without adverse consequence. Efforts to control the reproductive rights of women that go back more than 100 years, BTW, in the form of everything from the initial laws criminalizing abortion and thus making it practically inaccessible without extreme risk for poor women (which included virtually all women of color at that time) while protecting it, de facto, for wealthy women, to forced sterilization to the racist eugenic intentions of the "Negro Project" undertaken by Planned Parenthood on Margaret Sanger's watch by her colleagues, even though IMO there is no credible evidence whatsoever that Ms. Sanger herself was either racist or a eugenicist. (I just wish Planned Parenthood hadn't edited out of its website the last few words ("if it ever occurs to any of their more rebellious members") of Sanger's infamous quote about using Black ministers to reassure folks that Planned Parenthood (the American Birth Control League, at that time) was not out to exterminate the Black population, as Marcus Garvey once claimed and as rabid pro-life groups targeting the African-American community claim today, increasingly successfully, in light of the horrific statistics about the disproportionate use of abortion by Black women since Roe.
Whatever the cause, whatever the reason, it sure would be nice, if just for a moment, folks would take off the "abortion is the litmus test for women's equality" blinders for just a moment, look at the big picture of these cases together, and realize that perhaps a change in the strategy for the fight for women's lives is called for at this point in time, where we can no longer count on the Supreme Court to protect a federalized right to abortion. Dorothy Roberts and other women of color repeatedly warned the pro-choice movement in 1997 that its largely "ho-hum" reaction to the criminalization of drug addicted mothers and insistence that a fight couched as one seeking only "choice", rather than "reproductive justice" risked harming the overall success of the movement to truly protect women's reproductive freedom. Warnings like hers were largely ignored.
Who knows? Maybe the political or legal climate that is encouraging South Carolina prosecutors to now publicly push the legal envelope now and press for Gabriela Flores' incarceration (but for only 2 years, not 20 or 8 like Ms. Flores and Ms. Whitner respectively) for self-induced abortion under a statute which the legislative history proves was never intended to be applied to pregnant women at all would not now exist had those progressives claiming to care about all women's choice fought harder for women like Ms. McKnight and Ms. Whitner (also convicted under statutes that were never intended to punish them for their choice to carry their children to term.) Perhaps now, having largely ignored Ms. McKnight, Ms. Whitner and many others like them for two decades, and many other cases in which the rights of oppressed women to be mothers were successfully limited legally, Ms. Flores's horrid situation will force the larger women's rights movement to finally reexamine whether womanists like Dorothy Roberts were right all along about what needed to happen if we were truly going to win the war for women's choice. Perhaps success really does depend on taking the strategic and exclusive political focus off protecting abortion rights as the central goal, and putting it instead on a larger demand for reproductive justice.
A de-emphasis of abortion rights by placing it back into a larger bundle of women's reproductive rights would by no means jettisons a woman's right to choose (a common, specious claim by, yes, pro-choice women). Quite the contrary: the same populations that are most victimized by most practical and legal limits on pre-viability access to abortion -- poor women and women of color -- are equally victimized by all the other practices pushing them towards abortion as well. Such a shift would recognize that fighting only to save women who choose to resort to illegal abortion like Gabriela Flores, in the face of increasingly reduced access to the rights supposedly protected by Roe can't truly protect all women, and that only an equally vigorous fight for the enormous numbers of women who choose (or want to choose) to carry their babies despite their life circumstances protects the full spectrum of choice for all women.
People rightfully recoil at the accusation that progressives are "pro-abortion". Yet reviewing and comparing the collective response to the Gabriela Flores cases with the Regina McKnight/Cordelia Whitner/Crystal Ferguson cases can lead one to discern a clearly an unintended message about what really matters: choose abortion and progressives will marshal for you no matter what your individual circumstances. Speak the language of "my body my choice" and you'll never be alone. But if that's not your theme, your other possible reproductive choice is only worth progressives' time, legal energy and money if you are not seen as "flawed" or "imperfect." If you are "worthy". Because after all, we all know that many women probably should have just have an abortion for the sake of society. Who wants to pay to take care of crack babies? Even if most of the "crack baby epidemic" turned out to be convenient, strategic, and deliberate political myth?
When progressives rightfully look at what is happening now, and evoke the horrorific image of The Handmaid's Tale, we seem focus only on the aspects of the story which depict women being forced to "choose" to give birth as a condition of their literal survival. But almost nobody not on the other equally horrific part of Offred's tale: that her own already living daughter was forcibly stripped from her and given away to a more deserving person because Offred herself was deemed unworthy of being a mother. She was "bad" (in Offred's case, previously married and divorced.) She is capable of being a brood mare women, but incapable of being a mother. And she is told that this is all because of choices she made that had nothing to do with avoiding motherhood, and everything to do with seeking it despite her "flaws."
Sort of like Ms. McKnight, and Ms. Whitner, long ago now.
Yet the only choice that seems to make people furious enough to demand political action in the name of women's freedom is the choice that Ms. Flores has made - to abort. Because they can't see the big picture of the reproductive justice forest, focusing on only the single tree of abortion rights and protecting its growth. Yet, as Lucinda Cisler made clear 36 years ago in advocating her view that women must have fight for an absolute right to abortion no matter what, complacency about what will happen to oppressed women is and was a serious tactical mistake. Because
All women are oppressed by the present abortion laws, by old-style reforms, and by seductive new fake-repeal bills and court decisions. But the possibility of fake repeal--if it becomes reality--is the most dangerous: it will divide women from each other. It can buy off most middle-class women and make them believe things have really changed, while it leaves poor women to suffer and keeps us all saddled with abortion laws for many more years to come.
I would submit that because the political fight has now become about Roe v. Wade to the virtual exclusion of everything else relating to women's reproductive justice for all women, progressives and mainstream pro-choice groups have inadvertently fallen into the very trap that Lucinda Cisler warned us against: women are divided. Too many see abortion rights as the measure of victory, when it fact it is and was always a small part of the idea of reproductive justice and equality for all women. A justice and equality that does not merely focus on women who want to terminate their pregnancies, but focuses equally on women who choose to take them to term.
Because in the end, we can and should be willing to agree that laws targeted at criminalizing or restricting the free will of pregnant women must be carefully scrutinized to ensure that they aren't really backhanded attacks on women and women's right to control their fertility. And this is indeed what most of the laws that have been historically ignored by the pro-choice movement are: the forced sterilizations, the forced birth control, the Hyde Amendment, the prosecution of drug addicted mothers, the family caps on TANF/welfare, and yes, the prosecution of women who illegally terminate their pregnancies. All efforts to limit the fertility choices of women who are not quite "up to snuff."
Yet the only time progressives fight to the death for these "less than up-to-snuff" women is if they want to have an abortion.
So I am angry. I'm angry because the relationship between limiting access to legal abortion under Roe and Casey, and punishing women who made the choice not to abort at all as was done in Mcknight and Whitner; and the need to make both types of attacks on women's right to choose equal priorities in the political fight, seems completely lost on the vast majority of allies claiming to care about choice. We are willing to go to hell and back and engage in some of the most hysterical rhetoric imaginable sometimes fighting over the limited tree of access to abortion, even if that approach means unwittingly reinforcing the message that a woman's right to become a mother without risk of legal or practical punishment for that choice -- the counterbalance that is absolutely necessary to ensure TRUE reproductive choice -- isn't anywhere near as important.
As Lynn Paltrow (the most prominent legal pundit today on the link between abortion rights and the larger attack on women's reproductive choice represented by the persecution of downtrodden women who choose to preserve their ability to give birth) wrote in her article Pregnant Drug Users, Fetal Persons, and the Threat to Roe v. Wade, years before the ascention of the neo-con theocracy we decry under Dubbya:
The prosecutions of pregnant women represent a significant threat to reproductive freedom, yet the response from the pro-choice and progressive communities has been disturbingly muted. Almost thirty years ago, activist Lucinda Cisler argued "the central rationale for making abortion available [is] justice for women." She warned that "the choice is up to us: we must subject every proposal for change and every tactic to the clearest feminist scrutiny, demand only what is good for all women, and not let some of us be bought off at the expense of the rest. By failing to subject the prosecutions of pregnant drug users to careful scrutiny, and to challenge them vigorously, we risk losing both the rights recognized in Roe and the greater goal of reproductive justice and equality for all women.
And, as Dorothy Roberts noted:
. . .Reproduction is not just a matter of individual choice. Reproductive health policy affects the status of entire groups. It reflects which people are valued in our society; who is deemed worthy to bear children and capable of making decisions for themselves. Reproductive decisions are made within a social context, including inequalities of wealth and power. Reproductive freedom is a matter of social justice.
Now let me get personal. It is not only conservative anti-choice lawmakers and activists who have promoted a narrow view of reproductive liberty that leaves out women like Lori Griffin, Yvonne Thomas, and C.K. Our preeminent reproductive rights organizations bear equal responsibility. In promoting access to abortion and birth control, they have almost completely ignored a social justice vision of reproductive freedom. And they have ignored it despite the efforts of women of color who have tried for decades to explain a broader meaning of reproductive health and decision making and to incorporate their experiences into the struggle for reproductive liberty. The gap between these different understandings of reproductive freedom is a painful and costly one. Instead of uniting women around our common interest in reproductive self-determination, these issues have divided us along lines of race and class. Surely the reproductive rights movement would be stronger in numbers, in passion, and in righteousness if it included the diversity of women's needs and desires. So why aren't we getting through?
. . .What are we fundamentally struggling for? The fight for reproductive freedom cannot be based on a love for terminating pregnancies. Its success cannot be measured by the number of abortions performed and contraceptives dispensed. We must be motivated by a love for human freedom and equality. A social justice vision recognizes that access to abortion and birth control is essential to women's equality and control over their own bodies. But it also recognizes that just as important for social justice is equal respect for women's decisions to have children.
Unfortunately, Cisler, Paltrow, and Roberts may well be proven right in their concerns, since I still don't see all that much concern about meaningful reproductive choice that oppressed women they (feminists, all) continue to be deprived of 32 years after Roe. But I'd like to hope that the progressives who are currently harkening the reduction of women to "slavery" if abortion rights are again thrown back to the states, those who would readily fight for a Gabriela Flores' right to abort, will realize that if they aren't willing to fight just as hard for the Regina McMartin and Cornelia Whitners of the world (who chose not abortion but motherhood), all our efforts do is guarantee that the larger fight for women's genuine freedom will never end, at least not without some women being permanently thrown overboard. I'd hope that those who have spent many years fighting the good fight with the best of intentins can nonetheless step back, look at whether we've really succeeded or failed with the prior focus on abortion rights, and evaluate the political approach at both the state and federal level in light of this. And I hope that ultimately, progressives will regroup into a permanently successful, across-the-board even if we don't all agree on the details of controversial things like abortion or drug addicted mothers, women's coalition. IMO, recognizing that this is probably the only way women can permanently wielding the overwhelming political power on the question of our reproductive rights that women's majority status in the population suggests we should have had a long damned time ago.
But we're running out of time. We can all agree on that, I hope.
Having now written my one and hopefully only abortion diary despite a nearly year-long promise to myself, I'm going to finally shut up the hell up now. (Particularly since I've spent about 6 hours on this and I'm rambling a bit because I've been a bit foggy since my mother passed; and debated myself about whether I'm even capable of making myself clear in light of that; my apologies if I have not.) I hope that people at least think about what I've said and come at the discussion in good faith, recognizing that while I've been critical of an abortion-centered political strategy for the fight for women's equality, I've not accused anyone of acting in bad faith or to deliberately harm women's interests. I don't believe that about anyone for a second.