About Abortion Providers

Carol Sanger’s new book “About Abortion” is a sweeping and powerful look at the various components that make up the modern debate about abortion, a medical procedure that roughly 30% of women will undergo during their lives. As most readers of this blog know, Sanger is a law professor, so the book is imbued with law throughout, but it would be wrong to call this a legal book about abortion. Rather, it traverses so many different aspects of society — not only law, but literature, history, pop culture, international practices, philosophy, and more. Sanger’s writing is engaging and thought-provoking, and she has the enviable ability to seamlessly weave all of these elements and more into a sophisticated look at how, in her words, “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.” (p. ix)

The introductory post to this symposium nicely recapped the book. What I want to focus on with this post are the insights that Sanger brings to the world of abortion scholarship and how they play out in the context of abortion providers. With her focus on women’s reproductive decision-making (and even, in a fascinating chapter, men’s as well), Sanger doesn’t write too much about providers and the challenges they face, but her book has much to offer in understanding abortion providers’ lives. After all, they live and work in the same society inhabited by the women Sanger focuses on, so they have to navigate all of the same obstacles. But, as the people on the other end of the constitutional dyad recognized in Roe v. Wade — Justice Blackmun wrote about the protected decision as one that “the woman and her responsible physician necessarily will consider in consultation” — they also face their own unique challenges.

Two of the key insights from “About Abortion” are Sanger’s critique of abortion secrecy and her analysis of abortion law and restrictions as punishment, not merely as deterrents. The three previous symposium posts have covered Sanger’s arguments about secrecy in depth, so I won’t repeat the substance of her argument here other than to say that, as with the rest of the book, she focuses on the harm that secrecy does to women, both personally and politically.

The same concerns that Sanger has about women and abortion secrecy are prevalent among abortion providers, and for many of the same reasons. Sanger writes that women are secretive about abortion “in response to the threat or prospect of harm, whether harassment, stigmatization, or fear of violence.” (p. 61) The same concerns contribute to abortion provider secrecy. Two years ago, Krysten Connon and I published a book, Living in the Crosshairs, investigating how abortion providers are individually targeted by anti-abortion extremists. One thing we found was that, as a result of this targeting, many abortion providers want to speak up about their work but feel that they cannot. They tell others that they work in “women’s health” but never disclose exactly which role. In the back of their minds are the abortion providers who have been murdered and terrorized. As one provider told us, she has to “try to keep your mouth shut because if you’re outspoken like Dr. Tiller [who was assassinated in 2009] they find ways to shut you up.” Another provider explained that, after federal marshals were assigned to protect him because he was considered at risk following another doctor’s murder, he was told he should “no longer have a public presence. In other words, stop writing letters to the editor.”

Sanger notes in her last chapter how difficult it is to have positive political change without women talking about their abortions. “The willingness of women and others to talk about abortion will over time make an immense difference to its legislative fate,” she writes. (p. 216) Providers feel the same way about speaking up about being an abortion provider. One clinic director made this point to me and my co-author: “I don’t think less of the providers who won’t speak out. But I think whatever they can do, they should do. Whether it’s telling their hairdresser what they do for a living. Or telling a patient their name, even. Something even that simple. I think whatever they feel like they can do they should try and do to just contribute to the end of that stigma. But I understand why everyone can’t speak out that way.”

Which is why it was so remarkable that Dr. Willie Parker, an abortion doctor who currently works in Alabama and Mississippi, was on the Daily Show Monday night talking openly about his conviction that his abortion work is moral and life-affirming. When more providers break through the veil of abortion secrecy that Sanger writes about, the hope is that Sanger is right and that legislatures will take notice.

Sanger is also very convincing about punishment and abortion law. The central claim of punishment that she weaves throughout the book is that abortion restrictions, which we tend to talk about as being about deterring women from accessing abortion, also operate (or maybe even more accurately — really operate) to punish women. For instance, as Sanger writes, forced ultrasound viewing “underscores for women that what they are about to do is wrong” and “takes the state’s punitive intentions to clever lengths” by using women’s bodies to punish them. (p. 126) Separately, requiring minors to notify or get the consent of their parents or, if they aren’t comfortable doing that, go before a judge to get permission to have an abortion is also punishment. Sanger says that these hearings “are demeaning, harsh, and punitive. They are an attempt to remind girls where the locus of power in twenty-first century America is located.” (p. 184) After all, studies show that women aren’t actually deterred by either of these hurdles. Rather, they go through with the abortion but in the process are punished for not living up to the standards that anti-abortion legislators think are part of women’s ideal role in society — motherhood.

This consistent thread of punishment that Sanger documents runs as deep as the actual placement of abortion law in state statutes. Even though we are now in our fifth decade post-Roe v. Wade, the regulation of abortion in many states (maybe even most) is still located in the criminal code. Stated differently, if a particularly astute woman wanted to look up what she would have to do in order to get an abortion in her state, she would see that the state still thinks what she is doing is in the realm of the criminal. If that’s not proof of Sanger’s point that abortion law still functions to punish women for their choice, then I don’t know what is.

As with the secrecy part of Sanger’s argument, abortion law not only punishes women for choosing abortion but abortion providers as well. All providers, not just doctors, have to jump through hurdles that no other medical care professional has to. In doing so, they are reminded that the state thinks what they are doing is borderline criminal. This was particularly apparent after the arrest and conviction of Philadelphia doctor Kermit Gosnell. Gosnell was a sociopath who also happened to be a doctor. As part of his practice, he dispensed pills without prescriptions and provided abortions in unsafe conditions. After federal authorities raided his clinic looking for evidence of his illegal prescription operation, they also found that he had killed babies and one woman during an abortion. He was prosecuted and sentenced to life in jail in 2013.

This was just the opportunity that anti-abortion legislators were looking for. Once Gosnell came to light, they quickly introduced and passed scores of prohibitions throughout the country in the name of “no more Gosnells.” While the sentiment is laudable — no one on either side of the issue wants any more Gosnells, just like no one wants more murderers or kidnappers — the way legislatures went about it was by punishing abortion providers as a whole. Despite the fact that abortion is one of the safest medical procedures available, abortion providers were lumped in with Gosnell and targeted as butchers. In other words, they were punished for stepping outside what legislators thought their profession should be doing.

This wave of legislation over the past several years, much of it driven by the response to Gosnell but also because of the 2010 Tea Party takeover of many state legislatures, punishes providers in other ways too. For instance, the Texas restriction that the Supreme Court struck down last summer that required abortion doctors to obtain admitting privileges from a local hospital punished abortion doctors for being too competent. Most hospitals require doctors seeking admitting privileges to send a certain number of patients per year to that hospital. However, abortion doctors so rarely send patients to the hospital because the procedure is so safe and has so few complications. The perverse effect of being so competent is that abortion doctors can’t obtain admitting privileges and thus can’t practice their trade. Thankfully, the Supreme Court recognized this problem and struck the law down, but the message from legislatures to providers was clear — we are punishing you for the work you do.

There are many more examples that I could use but won’t here for space reasons. They all make the same point. Abortion providers, like the women they serve, are regulated not only to make the procedure more difficult to access but also as a form of punishment. Sanger’s convincing argument that law should do a better job treating abortion as the normal medical procedure that it is and be less concerned with punishing women for seeking it applies just as equally to abortion providers.

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4 Responses

  1. Jin says:

    This consistent thread of punishment that Sanger documents runs as deep as the actual placement of gun-ownership laws in state statutes. Even though we are now finishing our first decade post-D.C. v. Heller, the regulation of gun-ownership in many states (maybe even most) is still located in the criminal code. Stated differently, if a particularly astute woman wanted to look up what she would have to do in order to get a gun in her state, she would see that the state still thinks what she is doing is in the realm of the criminal. If that’s not proof of Sanger’s point that gun-control laws still function to punish women for their choice, then I don’t know what is.

    • Brett Bellmore says:

      Amusing, but short of Article V, there’s always going to be one glaring difference between the ‘right’ to an abortion, and the right to keep and bear arms: The latter is actually in the Constitution, and the former *isn’t*.

      • Jin says:

        True. Whether the freedom to have an abortion is one of the liberties reserved to the people in the ninth amendment is subjective. But if it’s true that one-in-four women have an abortion during their lifetime, the courts and prisons would immediately overflow.
        Procedural due-process can probably only be provided for when actions that are done by less than 3% of the population are outlawed. That’s why countries without plea bargains don’t outlaw drug use or prostitution, for instance.

        • Brett Bellmore says:

          Note that that percentage has been continuously dropping; In ’92 it was thought to be 43%. It may still be dropping.

          It has been speculated that this is a consequence of the widespread use of ultrasound; It’s much easier to kill your baby if you haven’t seen it yet. That’s why abortion opponents are pushing for mandatory ultrasound before abortions, and abortion advocates are strenuously resisting.