Carol Sanger Replies to David Pozen: Rules, Standards, Abortion
David Pozen begins his post by tearing through an avalanche of subjects packed into 14 pages early in Chapter 1, whose only connection to each other seems to be their (sometimes opaque) connection to abortion. Upon reading what he describes as a “whirlwind tour,” I too had to ward off a feeling of vertigo until I remembered that I myself had written these lines and in this way on purpose. They appear in a section called What Abortion is About and I wanted to show what abortion looks like across the culture if you don’t take it one thing at a time but let the entire “culture of abortion” wash over you all at once. The idea was not only to identify how much in America is about abortion but also to experience it, even at a reader’s remove. Happy to say, both Pozen and I recovered and I am grateful to him for diagnosing the spinning sensation as, in the end, producing “an enhanced sense of clarity about the arc of abortion regulation.”
In this response, I want to riff on three aspects of Pozen’s insightful critique. The first concerns secrecy, the second The Closet, and the third, distinctions between and application of rules and standards in the reproductive context.
Secrecy first. Although Pozen has written on the complications of deep secrects in government and its leaky leviathan, he accepts my characterization of privately held abortion secrecy on its own terms. He translates it thus: “secrecy [in the context of abortion] means that … dubious, paternalistic or factually erroneous claims” about abortions harms “are able to circulate with less pushback” than would be the case “in a more open conversational climate.” Flipping the perspective, secrecy means that claims about abortion’s benefits also go unspoken; even the phrase—“abortion’s benefits”—is politically dangerous.
While I have argued that it is the perceived or actual threat of harm that turns privacy into secrecy, I want to consider a further possibility about why women stay mum. Keeping abortion secret may also be a matter of familiarity with nondisclosure in the realm of women’s bodies and how they function. Women and girls are used to keeping body secrets starting perhaps with the development of breasts (with hunching and layering to hide them) and ending with HRT (hormone replacement therapy). These are but the end points of women’s reproductive bodies. They bracket a spectrum that includes periods, missed periods, intercourse, miscarriages, and menopause. These all concern reproduction and what is sometimes referred to as reproductive failure. Abortion is something much worse; not a natural “failure” but a deliberate decision not to cooperate with nature’s scheme, women’s destiny, God’s will, and so forth. Accepting these many sources of secrecy, abortion secrecy as a practice may be overdetermined.
I turn next to Pozen’s conclusion that, like other behaviors “coded as shameful or deviant,” abortion “is in the closet.” I agree. But what I am less clear about is just why this is so. Two distinctions between abortion and other stigmas highlight the puzzle. First, unlike “being gay,” say—which many consider a constitutive aspect of identity—“having had an abortion” is not “being” anything. It is an event, an occasion, a procedure, a decision, a push-pin marking one moment or episode in a woman’s life. Yet abortion is converted in the prolife public narrative to a character flaw that sticks, unless one repents and even then I wonder whether as a social matter, not a theological one, if repentance really removes the taint. I am reminded of a Mary Tyler Moore episode from the 1970s where Mary was shocked to learn that Mr. Grant was breaking up with his girlfriend because he had heard she was “that sort of woman.” Disgusted, Mary pushes Lou and demands to know, “Just how many men is a woman allowed to have before she becomes “that sort of woman”? He replies, “Six.” The abortion answer is apparently one.
The second piece of the puzzle concerns abortion stigma, about which much has been written. Yet unlike other recognized sources of stigmatization, abortion is neither a trait, a constitutive commitment, nor a chronic condition. “Having had an abortion” is not even an apparent stigma. The stigma that keeps women in the closet is thus self-imposed; it is fear of stigma should the word get out. In this way, some women who choose abortion do more than comply with the unnecessary and humiliating laws around consent: they also internalize the suppositions of the legislative framework. In this way, the laws that signal abortion as deviant enlist women in the cause. If half of the 59,000,000 women who have had an abortion (starting with the ones who would have been, say 25, in 1973 and so are 69 today) would tell just two people, this might illuminate—if not defang—the closet in useful ways.
A mass (and private) revelation by grannies might address another of Pozen’s insights: that the problem with pro-choice disclosures is less one of ignorance that it is “a refusal of empathy.” This is a particular take on Kenneth Doka’s concept of “disenfranchised grief.” It is not only that the woman isn’t entitled to mourn or commemorate, should she so choose, but she isn’t entitled even to be understood. Talk to the hand, ladies, because the ears aren’t listening. Empathy might also function as incentive: if you act kindly to women of reproductive age who have terminated an unwanted pregnancy, they might do it again. In this regard, there is something to be said for women past their reproductive years to step up; their (assumed) lack of sexuality removes sex from the equation and isn’t at least part of the opposition to abortion based on disapproval of non-procreative sex? Were I an activist, I would stir up grandmothers, seniors, and pastor’s wives to come out, among friends, with granddaughters, in reading groups (try About Abortion!).
Finally, I turn to Pozen’s observations about rules and standards in the context of abortion. Rules, he explains, “limit case-by-case judicial discretion through crisp ex ante directives;” in contrast, standards force decision makers to “to think hard about whether they are acting appropriately and why.” However, Pozen shows the counterintuitive consequences of the distinction when a standard like “the undue burden test” is applied in the context of abortion. The result has not been “sensitive and honest debate,” but as Pozen states, an invitation to “endless cycles of opportunism and obstruction.”
Rules/standards difficulties extend into the subsidiary reaches of abortion regulation as well. Consider the treatment of minors where a straight out rule—the age of majority—does the initial sifting regarding which rules will apply. All women must comply with waiting periods and the many other conditions required for consent. But for those under 18 years, these rules give way to standards. A bypass judge must determine whether the pregnant minor is sufficiently mature and informed enough to be permitted to consent to an abortion. And here discretion raises its hydra heads. Judges in some states have found that have found that filing a petition in court to commence a legal hearing indicates sufficient wherewithal (my word) to warrant granting her petition. Others, particularly in Alabama, have found that nothing less than contemplating the consequences of the decision for one’s mortal soul will do.
One easy way out of this “piling on” for minors—who must comply with waiting periods and the rest on top of the bypass hearing—would be for states to lower the age of majority for abortion consent to 16 so that at least older teenagers would not have to undergo what Texas bypass attorney Susan Hays has called the “give the little tart a lecture” bypass procedure. After all, legislatures use variable ages of majority for minors all the time; they are allowed in a number of states at age 16 to consent to sex with another minor as well as to obtain birth control without a parent’s consent.
At the end of his post, Pozen says that “the relationship between legal doctrine and cultural practice in such a politically charged field [as abortion] may be poorly illuminated by abstract propositions about the comparative merits of rules, standards, or the like.” But abortion as a subject of inquiry and of regulation turns everything topsy-turvy: teenage girls held too immature to consent to abortion are left to become mothers; women are required to bury or cremate aborted fetal remains; the procedure is “abnormalized” through its omission from Medicaid. These various maneuvers are assaults on normal modes of reasoning. Unpacking the failure of traditionally reliable legal concepts is necessary to our collective efforts to appreciate what is going on and how to improve our own parries and thrusts. This is going to be a long match indeed, and I thank Dave Pozen for getting some of it going here.