Tagged: geography

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Did You Hear the One About the Alaska Legislator Who Said …

We have folks who try to get pregnant in this state so that they can get a free trip to the city, and we have folks who want to carry their baby past the point of being able to have an abortion in this state so that they can have a free trip to Seattle.

One might think, at first blush, that this is a bad joke.  Yet this quote actually did fall from the lips of Alaska state representative David Eastman of Wasilla (Anchorage suburb, of Sarah Palin fame) last week, in conversation with the Associated Press.  Eastman subsequently made similar comments to other media outlets.  Bear with me as I bracket Eastman’s impeachment of women’s character, returning to it below.

Like me, you are probably wondering about this “free trip” thing, given that the Hyde Amendment prohibits the use of federal funding for abortions.  Turns out, according to the AP story, that the “Alaska Supreme Court has held that the state must fund medically necessary abortions if it funds medically necessary services for others with financial needs.”  Mighty progressive, if you ask me, not least because many women in Alaska must travel vast distances to reach an abortion provider, given the size of the state.  And this can be mighty expensive and involve multiple plane journeys, even within Alaska.  (Bear in mind that the villages around Bethel and the Yukon-Kuskokwim Delta are among many Alaska places not accessible by road.) Ditto for those who must travel for other medical services, which the Alaska court has wisely recognized.

Indeed, speaking of distance, the dust-up created by Mr. Eastman reminds me of one of the most knuckle-headed things I’ve ever seen a judge say about the “undue burden” standard under Planned Parenthood of S.E. Pennsylvania v. Casey (1992):

A woman in Alaska, for example, could be required to travel 800 miles to get to an abortion clinic merely because she lives in one place and the nearest abortion clinic is on the other side of the state. But that certainly doesn’t constitute anything even approaching an undue burden.

The judge who wrote this was Dee Benson (now a senior district judge), and the case was Utah Women’s Clinic v. Leavitt, 844 F. Supp. 1482 (D. Utah 1994) (discussed here).  Why the Utah judge thought it appropriate or necessary to use an example from Alaska rather than Utah is unclear.  I suppose he was looking for the most extreme example of distance he could find–to then make the point that such travel would still not trigger a constitutional problem.  Given that Alaska is the largest state in terms of land area, Judge Benson necessarily turned to “The Last Frontier” to illustrate his point.

Interesting in light of this point is the fact that the second largest state in the union, Texas, became the subject of the latest round of litigation over abortion restrictions, culminating in the U.S. Supreme Court’s 2016 decision in Whole Woman’s Health v. Hellerstedt.  Of course, distance ultimately loomed very large in relation to the Court’s assessment of the undue burden standard there because women would have been challenged to travel as far as 550 miles each way (from El Paso to San Antonio) to reach an abortion provider had the Court not struck down Texas H.B. 2.  Read more here and here.  Distance as an undue burden is also a reminder of my recent exchange with Prof. Carol Sanger of  Columbia Law  on this blog regarding  the significance of spatiality/geography/rurality as it relates to abortion access.

But let me return now to the issue most directly implicated by Eastman’s comments,  which is less about the burden of distance (and therefore the “situation of women”)–which the state of Alaska has pragmatically taken care of, at least in part–and more about the character of women.  The AP story, by Becky Bohrer, includes not only helpful background for us on abortion availability in Alaska and, for late-term abortions, in Seattle, she also fills us in on the furor Eastman’s comments have generated:

In a speech on the House floor Friday, Democratic Rep. Neal Foster of Nome said Eastman’s comments were unacceptable and said he hoped Eastman would apologize.

“It shocks the conscience to think that a female in a village would want to endure the physical and the emotional pain of getting an abortion just so that they could get a free trip to Anchorage,” Foster said.

Most of the women who live in villages that Foster represents are Alaska Native and feel Eastman’s comments were directed toward them, Foster said. Many Alaska communities are not connected to a road system and smaller communities often have limited health services that necessitate travel to larger communities for care.

Two other “rural lawmakers,” demanded a public apology from Eastman, and Rep. Geran Tarr of Anchorage said she might “seek a motion to censure Eastman,” calling his comments “deeply offensive, racist in nature, and misogynistic.”

It is encouraging to see other legislators standing up for Alaska Natives and other rural populations.  And it also brings me back to the really outrageous part of what Eastman said–that women might purposefully get pregnant so that they can have a day out on the town, a freebie trip to the bright lights to get an abortion … and then tie on some shopping or a fancy meal, maybe even a jaunt up the Space Needle. This outrageous suggestion ties perfectly into Sanger’s over-arching point in About Abortion:  Terminating Pregnancy in the 21st Century:  women take abortion seriously–and we should presume they can make good decisions about it for themselves.  We should certainly not presume–as Eastman suggests–that they will get pregnant willy-nilly to “earn” a frolic in the city.  Insulting, misogynist and racist, indeed.

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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 this 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.