Talking About Abortion
Let’s talk About Abortion. Columbia law professor Carol Sanger does that, and asks us to do that, in her new book, About Abortion: Terminating Pregnancy in Twenty-First-Century America.
Sanger explains many aspects of the development of abortion law in the United States. She describes the pre- and post-legal abortion rights situation in the United States. She contrasts pro-life and pro-choice advocates. She carefully analyzes the Supreme Court’s first recognition of abortion rights in Roe v. Wade. She then explains how the Court weakened its support of abortion in Planned Parenthood v. Casey. At the end of her legal history, she sounds very optimistic about Texas’s defeat in the Supreme Court’s most recent abortion case, Whole Woman’s Health v. Hellerstedt. Indeed, she even includes WWH as part of her commitment to the normalization of abortion. Perhaps she is right that, in a country that is full of pro-lifers on the Court and off, any Court victory for abortion rights is a big win.
Central to the book’s argument is Sanger’s distinction of abortion privacy from abortion secrecy. Some women view abortion as a private, personal, difficult choice that leads them to keep their decisions private. In contrast, however, the negative attitude toward abortion in some parts of this country gives women additional, and different, reasons to keep it secret instead of private. In Sanger’s words,
Privacy is valued for what it provides to those who choose it: a decision taken for privacy is credited as reflecting a person’s will: it is an exercise of autonomy. … By contrast, the decision to keep a matter secret in the context of abortion is often a response to the threat or prospect of harm, whether harassment, stigmatization, or fear of violence. (p. 61)
This distinction is one reason why the book advocates more talk about abortion. Sanger recognizes that, more than any other source, the way women talk about abortion clarifies “the decision making, the importance of the choice, the practical arrangements, the legal requirements, the procedure itself.” (p. 49)
With this secrecy/privacy distinction as background, the book recognizes that Americans have not discussed abortion as openly as they have contraception, LGBT rights, or other moral matters. For that reason the last chapter, “Normalizing Abortion,” argues that we need to talk about abortion differently. Although she has repeatedly proclaimed the power of secrecy and privacy in the abortion context, Sanger nonetheless recommends that women talk about abortion. In her words,
the aim is to pry abortion loose from the confines of a paralyzing secrecy so that the possibilities can be discussed, vetted, challenged, reviewed—with others beforehand and, importantly, after. Normalizing abortion talk aligns ordinary discourse with experience. It enables women to discuss their decision making and their own experiences with greater ease and security. (p. 216)
In Sanger’s eyes, this would be a conversation about abortion, privacy, and secrecy, which relies on “reproductive candor” to complete it. (p. 219) The hope is that everyone could learn from a more open, candid conversation. As Sanger asks, “Yet is it not possible that some of these women might start to think of themselves as capable of affecting the views of others by revealing on an appropriate occasion that they once had or contemplated an abortion?” (pp. 218-19)
Sanger’s book is careful and sophisticated enough to recognize that some—perhaps most–of this conversation would be difficult. One profound problem is the role of religion in the history of abortion litigation. Sanger acknowledges that “abortion in the United States is often and crucially a matter of the ability of organized religion to shape and influence America’s political life as well as its spiritual one.” (p. 9)
Combined with her references to religion’s role in abortion law, Sanger’s call for more talk is a reminder of how much both abortion and religious freedom wind up being discussions about morality. That makes the conversation even more difficult than Sanger imagines. People have fundamental disagreements about the morality of abortion that seem unlikely to change.
Roman Catholic bishops have long led American opposition to legalized abortion. Richard Nixon was the first president to notice that he might persuade those Catholic Democratic anti-choicers to vote Republican. The bishops moved into the public debate about the issue by the 1976 election, when many of them gave presidential candidate Jimmy Carter a hard time for supporting Roe v. Wade. Their political vote has been consistently anti-choice both before and after the Court protected abortion rights under the Constitution.
The bishops’ position has been clear, constant, and consistent: they oppose abortion. Indeed, Catholic teaching doesn’t allow abortion unless it is an unintended byproduct of an independent moral action. In more straightforward words, if a woman has cancer of the uterus, the fetus may be morally killed by removing the uterus. But killing the fetus and leaving the uterus intact would be immoral. Almost every abortion is immoral in official Catholic thought. Such indirect abortions are an odd circumstance.
Under Catholic theology, abortions are not allowed in cases of rape, incest, poverty, marriage, or personal choice. The bishops have not wavered on their commitment to NO ABORTION. Period. The bishops also emphasized anti-abortion as a public policy even more than their opposition to contraception, gay, lesbian, bisexual and transgender rights, unjust war, and depriving poor people of food and health care.
Sanger’s book occasionally recognizes that lay Catholics, unlike their bishop colleagues, may wind up pro-choice instead of pro-life. Nonetheless, the bishops’ starting point usually influences them. Catholicism teaches that the pope and bishops are the best teachers of their moral doctrine, that those leaders are always right, and that the laity are expected to obey the hierarchy’s teaching. In the public sphere, the bishops fight for all of their moral teachings to be protected in law. They were the driving force behind most objections to contraception in the Affordable Care Act. Because they believe contraception is (almost always) immoral, the law should say so. If the law wrongly allows contraception, religious freedom should keep the bishops—and everyone else—from having to practice it.
This is one of the fundamental “talk” problems. Catholics are taught to oppose abortion in all circumstances. It is a grievous sin. When individual Catholics start to slip away, one by one, they are viewed as doing something immoral. Recent religious freedom arguments are so institutionally strong that they rarely encourage members of a religion to question their own religion. When they do so, they look and sound wrong.
For too long, both the Court and politicians have focused on protecting the leaders of religious institutions at the expense of their members. In one example, they favored employers over employees in the contraception debate. In a second case, they invented the “ministerial exception,” a defense that guts most individual employment disputes against religious institutions.
This almost-unreflective defense of the hierarchy over the laity has limited abortion talk in the numerous ways that Sanger brilliantly identifies. These actions favor secrecy over privacy. They try to shame anyone who says anything positive about abortion, let alone having one. To have the full talk that Sanger recommends, we are going to have to amend our hierarchy-favorable law and policies and let individuals speak more loudly.