Sanger’s Tour de Force on Abortion (with a Blind Spot for Geography)

We would expect nothing less from Carol Sanger than what we get from About Abortion: Terminating Pregnancy in 21st Century America: a wide-ranging, provocative, thoughtful and beautifully written monograph. As legal scholarship (if that is what Sanger intends it to be, and I am guessing she appeals to a broader audience than that), the book is “out of the box” because it is so extraordinarily, seamlessly cross-disciplinary. (Sanger is, after all, the scholar who brought us the  path breaking Girls and the Getaway:  Cars, Culture and the Predicament of Gendered Space (1995), one of my all-time favorite law review articles). As with her past work, Sanger’s prose is engaging, the breadth of literature she draws on sweeping, and the turn of phrase clever.  I am happy to report that hhis book is no doctrinal slog through the Supreme Court’s abortion law canon, though Sanger gives the germinal cases their due, along with a number of especially interesting ones from lower courts.

Near the outset of About Abortion, Sanger stakes out the territory she intends to cover and she articulates an over-arching point regarding women’s agency and competency:

This book is guided by a very different premise [from that of most abortion regulations and restrictions]. Women—even young women—understand very well what an abortion is. They understand that abortion ends pregnancy and that if they have an abortion, they will not have a baby: that is its very point. The significance of an abortion decision may differ from woman to woman and from girl to girl, but in deciding whether to continue a pregnancy, each will draw upon her own sensibilities, circumstances and beliefs. But as with other intimate decisions and commitments—who to marry, whether to pray, how to vote, what to do with one’s life in matters large and small—women themselves are best able to decide what is at stake.

As other reviewers in this forum have noted and detailed, Sanger takes up topics such as “Fathers and Fetuses: What Men Would Do,” “Sending Pregnant Teenagers to Court,” and “Abortion Privacy/Abortion Secrecy.” Even less conventional (as legal scholarship), though, are the chapters titled “The Eye of the Storm,” “Facing Your Fetus,” and “You Had Body, You Died.” In the first of these, Sanger analyzes the fetus as the eye of the political, cultural and religious storm about abortion. Here she explores images of fetuses from different cultures, how these images have evolved over time to look more like babies (or even little adults, with softened features), and the purposes to which fetal imagery has been put. The chapter features about a dozen illustrative images, some from outside the U.S., laying the groundwork for the next two.

In “Facing Your Fetus,” Sanger draws a clever parallel between mandatory ultrasound laws and the law of negligent infliction of emotional distress, in particular the bystander cases that typically featured mothers traumatized at having seen their child seriously injured or killed in an accident. As Sanger observes, both contexts and laws “draw upon a deep reserve of sentiment about what mothers are like and what causes them harm.” (p. 109) (It is worth noting that this is hardly a singular instance of Sanger making connections across law’s often arbitrary silos, as when she compares “abortion secrecy” to a germinal invasion of privacy (tort) case or when she compares the indignity of a minor having to air the details of her need for an abortion to the indignity of going to court for a divorce in the era when doing so required specific and detailed assertions of “fault,” e.g., cruelty, adultery).

In “You Had Body, You Died,” Sanger again uses images, this time to juxtapose women’s loss by miscarriage or even death of a child against the experience of abortion. This lays the groundwork for her discussion of the Supreme Court’s decision in Gonzales v. Carhart. Sanger is exploring here, as in the prior chapters, how “imagery acquires meaning in abortion,” (p. 147) including how the Supreme Court in Carhart used the imagery evoked by the written word (describing intact dilation and extraction) to justify its decision.

Much as I was enthralled by Sanger’s engagement with imagery and meaning in these chapters, I also appreciated the more practical turn she takes in “Sending Pregnant Teenagers to Court.” Here, Sanger builds on some of her earlier work and grapples with “on the ground” workings and consequences of abortion regulation, specifically judicial bypass for minors. Sanger surfaces an array of illustrations, mostly from reported cases but also from interviews with judges, bypass attorneys, and advocates, regarding how these laws undermine young women. One way the disservice occurs is by misunderstanding and harshly judging these teenagers, like the one in Texas who told the judge,

if I really put the cards out on the table and look through them—I—I having a baby right now would probably stop 75 percent of what I want to do … I know—I’m—like I said, I’m very busy. I have a lot of high goals, and having a baby would stop me from having them.

The judge used the “very busy” language against the young woman, ruling that—at least in part because of the way she had expressed herself—she “was not mature enough to make the [abortion] decision without parental guidance.” (p. 171). Sanger puts herself in these teenagers’ shoes, offering a very powerful critique.  She also credits the many organizations around the country, e.g., Jane’s Due Process, who help teens navigate these processes, and she notes recent legal limitations (Texas, 2016) that prevent teens from availing themselves of the anonymity an out-of-county/non-local filing and video-conference appearance might afford them.  (This is one point where Sanger might have noted the legal relevance of rurality, theorization of rural difference, see below).

In sharp contrast to this very textured and empathic discussion of what young women are up against in the judicial bypass context, About Abortion says far less about poor women seeking abortion and less still about rural women (often also poor) doing so. Sanger includes an obligatory discussion of Harris v. McRae (1980), the Supreme Court decision that upheld the Hyde Amendment’s ban on the use of federal funding for abortion. (p. 28) Later, regarding the run up to the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt (2016), Sanger acknowledges that the proliferation of TRAP regulations (Targeted Regulations of Abortion Providers) like the regulations at stake in that case (Texas H.B. 2) had returned the nation to a landscape with a “pre-Roe hue, with abortions available in some states and barely available in others, wealthy women traveling again, and poor women making do” (p. 35).

Otherwise, beyond a passing reference to “zip code jurisprudence” (p. 33), the book does very little to acknowledge the significance of geography to abortion access—including in relation to the “undue burden” standard adopted in Planned Parenthood of SE Pennsylvania v. Casey (1992) and the numerous federal courts who have since applied that standard. Admittedly, as a legal geographer, this is my pet issue, and it would be churlish of me to suggest that Sanger should have written the book I would have written. Yet it is a perennial surprise to me that scholars of reproductive rights and reproductive justice pay so little attention to the plight of rural women, devote so few scholarly resources to the geography angle on the exercise of rights.

The petitioners’ brief in Casey mentioned “low-income, young, rural or battered women,” three times in relation to the informed consent and waiting period laws imposed by the State of Pennsylvania. Yet the Casey plurality opinion failed to mention rural women at all except in a quoted finding of fact from the district court, which it ultimately dismissed. That plurality concluded that the trial court’s finding that “for those women with the fewest financial resources, those who must travel long distances, and those who have difficulty explaining their whereabouts to husbands, employers, or others, the 24-hour waiting period will be ‘particularly burdensome’” was “troubling in some respects” but insufficiently burdensome to invalidate the law. Many federal courts in the wake of Casey similarly dismissed the burden that waiting period/informed consent laws imposed on those living far from abortion providers.

Next, of course, came the Supreme Court’s 2016 decision in Whole Woman’s Health v. Hellerstedt, in which the Court finally took distance seriously—although it’s worth noting that it took vast Texas distances of 300-to-500 miles to get the Court’s attention. In short, Whole Woman’s Health put some teeth back into the undue burden standard, and Sanger notes the salience of travel and distance to that holding. In Whole Woman’s Health, Sanger writes, the Supreme Court balanced Texas H.B. 2’s “near non-existent medical benefits” against the “longer travel times, more time away from home, increased costs of child care, and the greater risk of being found out put in play by the lengthier process.” (p. 35).

Yet Sanger reserves her passion and a long quote from the Supreme Court opinion for another issue incident to the clinic closures wrought by Texas H.B. 2: the long wait times and the “crammed to capacity superfacilities” where women would have been expected to get abortions had the Supreme Court upheld the Texas regulations, leading to the closure of all but some half dozen Texas clinics. This mirrors the shift in media focus as Whole Woman’s Health made its way from the federal district court to the Supreme Court—a shift from a focus on distance to a focus on wait times as the dwindling number of clinics struggled to accommodate Texas’s 5.4 million reproductive-age women. It was a shift in focus from space to time, effectively from rural to urban.

The difference between Sanger’s passionate critique of sending teenagers to court in judicial bypass procedures and her brief matter-of-fact recital of the role of travel and distance in Whole Woman’s Health is striking. Again, Sanger’s passion need not be mine, but I can’t help grieve the lack of attention to rural Americans—especially low-income ones—whose lived realities are so little understood by coastal elites, by those who shape litigation with respect to rights whose exercise implicates the traversal of distance (including voting!), those who may take public transportation for granted, those who do not subsist on poverty  level wages. If the 2016 Election has taught us anything, it is surely that the narrating classes need to see rural Americans in all of their complexity—and that rural Americans resent their invisibility on the national stage. In short, rural America needs an advocate (better yet, a dozen or two, in an array of contexts) as eloquent and passionate as Sanger is generally about abortion.

This relative neglect of spatiality, geography, rurality should not, of course, dissuade anyone from reading About Abortion. Quite the contrary: the book is a tour de force, perhaps Sanger’s magnum opus. She accomplishes a great deal, in her inimitable way, and with elegance. It is an important book, and it deserves a wide audience, across many disciplines.

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7 Responses

  1. Classy says:

    Yet it is a perennial surprise to me that scholars of gun rights and self-defense justice pay so little attention to the plight of urban women, devote so few scholarly resources to the geography angle on the exercise of rights.

  2. Brett Bellmore says:

    Did some talking point recently go out, urging that a pseudo “right” invented by the Court out of whole cloth, transforming what was a crime in many states overnight into a ‘constitutional right’, is the same as an actual right written down in black and white in our Bill of Rights? Because it seems like it.

    • Anti-Federalist says:

      Our rights are not limited to the bill of rights, they begin with English rights and continue with the bill of rights, but are not limited to the bill of rights by the second amendment’s preamble because of the ninth amendment.

      http://avalon.law.yale.edu/18th_century/resolves.asp

      Resolved, N.C.D. 2. That our ancestors, who first settled these colonies, were at the time of their emigration from the mother country, entitled to all the rights, liberties, and immunities of free and natural- born subjects, within the realm of England.
      Resolved, N.C.D. 3. That by such emigration they by no means forfeited, surrendered, or lost any of those rights, but that they were, and their descendants now are, entitled to the exercise and enjoyment of all such of them, as their local and other circumstances enable them to exercise and enjoy.

      • Brett Bellmore says:

        I agree that our rights are not limited to the Bill of Rights, (Unless you consider the 9th to incorporate all rights by reference.) And that reference to the 2nd amendment was just incoherent, not snarky.

        But the 9th amendment was not intended as a judicial blank check to turn longstanding crimes into ‘rights’. It was intended to secure traditional rights.

        • Joe says:

          Early abortion was not a crime when the 9A was ratified. Making decisions regarding fertility, control of one’s person and health etc. were “traditional rights.” The right to choose was not ‘created out of whole cloth.’ A range of decisions were well recognized as rights. Abortion, one might argue, is a step too far, but that is quite different.

          The 9A doesn’t actually say “this is intended to secure traditional rights,” especially if the rights actually are connected to traditional rights but based on current knowledge and understanding. Thus, though it was a “longstanding crime” in many states, freedom of speech eventually was broadly held to include certain types of sexual materials, libel was much more harder to prove and criticizing judges outside the courtroom did not lead to contempt.

          The 9A says this: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” You can add words if you want, like you keep on doing to the 10th Amendment, but that’s what it says. The “intent” here was not to limit human rights to the knowledge and understanding of the times. To the degree, e.g., natural rights were deemed to be protected, natural rights are a result of human understanding that changes over time.

        • Teddy says:

          “The English law on abortion was first codified in legislation under sections 1 and 2 of Malicious Shooting or Stabbing Act 1803.”

          https://en.wikipedia.org/wiki/History_of_abortion

          —–
          That means abortion wasn’t a crime (outlawed by statute) until after the ratification of the American Bill of Rights.

  3. Joe says:

    The right involved in Roe v. Wade [which summarizes the case law; Planned Parenthood v. Casey does too, perhaps better] fits into an overall group of rights that reach back at least to the late 19th Century and overall probably to the Founding.

    It was not “invented out of whole cloth.” Enumerated rights are involved — e.g., equal protection is a factor here — but there is specifically also a reminder in the Bill of Rights that those not expressly written are covered. OTOH, forcing women to give over their bodies seems to be involuntary servitude, especially if as some people claim, requiring service in public accommodations might be!

    If someone has the right to something, the fact it is a crime in many places doesn’t exactly make it not one. But, abortion was not actually, like let’s say theft, really a crime overall like an average crime. Abortion generally was allowed in various cases but in an arbitrary way. So, e.g., some sort of health reason would allow a woman — if they had the right connections and so forth — to get one.

    But, conservatives are more comfortable about giving the government power, greatly influenced by sectarian religious beliefs [religious freedom to be guided by personal conscience important to them … sometimes], in certain areas.

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