The Supreme Court and Women’s Rights

By Jane Hassinger

We are by now perhaps saturated with horrifying stories of the systematic use of sexual based gender violence as a tool of war—in the Democratic Republic of Congo, in the Rwandan and Bosnian genocides, and elsewhere—emphasis on the word elsewhere.  Not here, not us.

But truthfully, in the United States, we are in the midst of our own war on women.  After 30 years of neoliberal policies aimed at dismantling the public sector, we have become inured to the effects on the most vulnerable in our society.  In “The Feminization of women-group-1175pxAusterity,” Mimi Abramowitz (2012) observed how neoliberal reformers have “weakened the power of social movements by reversing their gains…Free market ideology positioned the individual in an independent entrepreneurial relation to markets and opportunities without need for paternalistic intercession of the state.  Government sponsored programs, seen as interfering with individual initiative for solving economic and social problems, have been legislated out of existence.(32)” Think affirmative action.  Think Head Start.  Think Planned Parenthood.  Women and children are at the bottom of this pile.

Lynne Layton’s work on the psychological impacts of neoliberalism (2013) describes how a fundamental value of neoliberalism–repudiation of dependency and vulnerability—is normalized and unconsciously reproduced through perverse social rhetoric and processes, including sadomasochistic social relations, hypocritical and inconsistent rhetorical practices, and victim-blaming.  These processes characterize the dominant relations with the lower middle class and the poor (the greatest percentage of which are non-white and female).

This war on women includes a wide-range of policy efforts that claim to be in the interest of protecting women’s health, but in practice place draconian restrictions on available health care and erodes protections for women and their families. Examples at the state and federal level of restrictions on reproductive health care and abortion have included a rash of legislative initiatives that restrict access to contraception, cut funding for Planned Parenthood, require medically unnecessary ultrasounds and other procedures, impose highly punitive parental consent laws and waiting periods, and prohibit insurance companies from including abortion coverage.

Supreme Court of the United States

Now we are confronted with the chilling possibility that the United States Supreme Court will rule against Whole Women’s Health, the Texas abortion clinic that has protested the closing of nearly 75% of clinics unable to conform to Texas TRAP laws (targeted restrictions on abortion providers). In 2013, Texas legislators passed HB2, a sweeping measure that imposes numerous restrictions on access to abortion, most notably the following requirements:

  • Doctors who provide abortion services must obtain admitting privileges at local hospitals no farther than 30 miles away from the clinic
  • Every health care facility offering abortion care must meet building specifications to essentially become mini-hospitals (also known as ambulatory surgical centers).

These requirements unfairly single out women’s health care providers and do not apply to other, comparable medical procedures or practices, (e.g. colonoscopies which are less safe than abortions). They serve only to drive reputable, experienced reproductive health care providers out of practice. These deceptive laws have proven to create higher costs, lengthier delays, and extra steps for women seeking abortion care. In the process, women are punished for exercising their constitutional right to decide to end a pregnancy.

Whole Women’s Health has argued that these laws, purported to protect women’s health, in fact create undue burden for women who must endure long-waiting periods, increased pressure for surgical abortions, and long distances to access safe abortion. The American Medical Association, the American College of Obstetricians and Gynecologists and other leading health care experts are united in opposing these regulations, pointing out they serve no medical purpose, interfere in the doctor/patient relationship, and do nothing to promote women’s health.  Furthermore, there is growing evidence that more women are being driven to self-induce and/or seek services over the border from unsafe practitioners (Fuentes L., et al, 2016). This case has potentially drastic national implications.  There are counterparts and similar legislative initiatives in virtually every state.  By the first quarter of 2016, 45 states had introduced 1,022 provisions to restrict access to safe abortion care. With this case, a woman’s right to choose may be seriously undermined across the nation.

Abortion politics have always been complicated and often divisive.  Most recognize the Supreme Court’s 1973 decision on Roe v. Wade as a compromise focused entirely on women’s interests and neglected the public’s interest in the morality of “stopping a beating heart” and fetal rights. In Abortion and Social Responsibility: Depolarizing the Debate, philosopher Laurie Shrage (2003) reveals how Roe v. Wade’s six-month time span for abortion on demand polarized public sentiment and led to a predictable backlash that has made a spectacularly successful use of regulatory schemes and TRAP laws that threaten to regulate abortion clinics out of business.

The split between social responsibility and respect for human life and the non-nuanced polarized discourse in abortion politics was structured into abortion politics from this point on.  This split set the stage for what we are experiencing today as we await the results of the Supreme Court’s decision. In 2016, access to reproductive health care has eroded to an alarming degree and many agree that if a Republican becomes president constitutional protection of abortion will disappear. Women suffer the consequences of this cultural and political splitting.

We are alarmed, and yet over the years we have been bystanders to these developments. On the matter of our collective culpability, Lynne Layton has commented: “psychoanalysis colludes with neoliberal narcissism in generally refusing to understand what people suffer from as having to do with societal conditions.  One effect is the kind of inadvertent shoring up of narcissism…when clinicians unconsciously reproduce a disconnect between the privileged and the socially excluded either by normalizing the privilege of the privileged or through learning to turn a blind eye to the disparity between those treatments available to the rich and those available to the poor” (2014, p. 174). Therefore, it has become possible for many of us not to notice that in 2011 eighty-nine percent of all U.S. counties, did not have an abortion clinic (Jones, 2011). The access has not improved since that time.

A vivid example of this disconnect is our dissociation of the violence perpetuated on abortion providers and activists. Since 1998, eight abortion providers and three bystanders have been murdered.  There have been 17 attempted murders, 175 incidents of arson, 41 bombings, and thousands of incidents of vandalism, harassment of providers, and death

Protesters Outside an Abortion Clinic

threats. In December of 2015, an abortion clinic in Colorado Springs was invaded by Robert Dear, an armed mentally ill person who held clinic workers and patients hostage for many hours. He murdered three people and seriously injured three others in the parking lot.  Regularly, providers and patients are subjected to a state of siege, through 24 surveillance and protest at clinics and providers’ homes. In spite of the fact that, 52% of Americans believe abortion should be legal in some cases and 28% in all cases, to speak out about abortion and its value to our society has become dangerous.

This threat of violence exists, despite the fact  abortions are a common procedure, with many women seeking them. Consistently over the years nearly half of all pregnancies are unintended and 40% of those end in abortions.  Over a million abortions are performed in the US each year, 90% in the first 12 weeks of pregnancy. Thirty-three percent of American women have abortions by age 45.  Sixty-one percent of these women have children.   In the last ten years unintended pregnancies have increased by 29% among poor women, about the same period of time in which we have seen family entitlements decrease dramatically. Abortion is a poor women’s health issue.

Abortion is an option on the continuum of services and technologies women engage with when deciding when, how, and if to become parents, but it has been dropped from that continuum of care in public discourse and most clinical settings where reproductive health services are offered. And, the abortion workforce now involves a serious human resources issue. In Willing and Unable:  Doctors’ Constraints in Abortion Care, Lori Freedman (2010) describes how abortion practice has been pushed to the periphery of medicine through stigma and managed care’s appropriation of decision-making.  The numbers of providers are shrinking dramatically in what is now a predominantly female work force. While we experience the “graying of the profession,” only half of those trained in abortion actually provide abortion for reasons including the increasingly inhospitable climates for practice. (Guttmacher Institute).  Increasingly, willing practitioners must choose between practicing OB/GYN or practicing abortion.                                     

 An examination of the tactics and rhetoric of the “abortion wars” reveals how the intensity of these politics and the virulence of stigma vary over time.   After Roe v. Wade the majority of Americans regarded abortion as a moral, positive step, and practically the “litmus-test issue for many advocates of women’s equality,” (Hendricks, 2011).  But over the last 20 years it has nearly dropped out of equality discussions and many feminists and pro-choice advocates have anxiously endorsed the silence of its practitioners. When abortion was illegal, pro-choice activists exposed the dangers of unscrupulous, untrained abortionists.  Now anti-choice activists demonize well-trained professionals, depicting them as immoral, mercenary, baby-killers.

In 2014, we were horrified by the trial of Philadelphia provider Kermit Gosnell for the death of a patient, in which shocking images of sub-standard treatment facilities and fetal remains were prominently displayed. During the Gosnell trial, Marjorie Dannenfelser, president of the Susan B. Anthony List, funders of anti-abortion candidates, noted:  “the debate suddenly has a visual argument.  You look at the pictures and you think, ‘that’s a baby.’” (USA Today, April 22, 2013).

This is of course not a new tactic.  The anti-abortion movement has for some time manipulated fetal imagery to make us think we are looking at a viable human baby as opposed to a disembodied fetus.  This iconic fetus (Duden, 1993) has become the rallying point for anti-choice activists. Through skillful marketing of airbrushed fetal images–eerily suspended in space and seeming to symbolize the life itself–anti-abortion forces have organized a perverse fetishistic preoccupation with the fetus. This ‘embryonic subject,’ with the dissociated but implied abandoning mother, is designed to invite moral outrage, construct providers as monsters, erase the material and moral circumstances of the mother, and silence her voice. De-embedded from the mother’s body, the illusion of individuation creates an artificial status as a viable entity. (Shrage, 2003)  But this fetus is not without relations (think of Winnicott’s famous statement “there is no such thing as a baby” without the mother). It is that relation between a fetus and the women which restores her erased subjectivity

Abortion stigma is pervasive across many regions of the world, reflecting deep anxieties about deviation from patriarchal ideals of femininity, eschewing motherhood, women’s sexual autonomy, and the belief that abortion is equivalent to killing a born person (Harris, Hassinger; 2011).  Mobilized individually and collectively by means of splitting, projection, and scapegoating these processes reflect and increase the inability to give voice to insecurities and personal suffering when society fails to adequately contain anxiety and disgust associated with human vulnerability and dependency (Layton, 2014).  In anti-abortion or so-called pro-life rhetoric, women who claim authority over their choice to give their bodies to pregnancy and birth are constructed as despicable, ignorant, pathetic, and mentally ill.  Their subjectivity is demeaned and often erased entirely, replaced by a decontextualized fetus, which is idealized and symbolically parented by the pro-life activists.

Serving as a cultural container for displaced rage and annihilation anxiety, this iconic fetus stands in for the vulnerable every man. In response to lost local control over jobs and degraded environments, fetishistic enthrallment with the “unborn” expresses a paternalistic identification with life and control of women’s bodies and destinies (Gentile, 2013).  This hypocritical celebration of life disguises and distorts the displacement of envious, hateful feelings associated with fear of and dependency on women. Women who seek abortion, are made invisible or constructed as victims, vulnerable to unscrupulous providers, who are demonized as baby-killers and marginalized as health care professionals. Implicitly, the fetus stands at war with the abortion provider who commits murder. Violent hate crimes are a logical, albeit extreme, extension of pervasive social stigma.

Investigating the idealization of and increased media focus on the pregnant bodies of celebrities to post 9/11 anxieties, Katie Gentile observes “as reproduction is a foundation for our future temporal orientation then women become associative signifiers of the future” (2013, p.53). Women are both containers and targets for projected cultural anxieties. Because of technological advances in managing fertility and infertility, not to mention its unpredictability, pregnancy becomes the perfect screen for patriarchy’s claim on the future as well as conscious and dissociated annihilation anxieties, producing a fetishistic relationship to pregnant bodies and the fetus.   Again, from Gentile “having that body potentially fail to reproduce in a controllable and predictable fashion or choose not to reproduce at all compounds anxieties resulting in further need to monitor and control women’s bodies as future or current reproducers” (p. 54). A similar process occurs with abortion providers, as they are driven into silence.

Abortion providers are not seen and not heard. They struggle daily with intimidation, disgust, women’s concern for their babies, violence, abuse of women and children, and the moral quandary that arises with inflicting pain and the stopping of a beating heart.  They understand that the movement’s emphasis on choice decontextualizes women’s lives and creates a false antagonism between the women and fetus.   They struggle to retain a sense of moral agency, and they fear for the lives of their patients and their own.  Their status as moral actors is erased in the minds of outsiders.

In silence, providers cannot counter the propaganda that characterizes them as hostile to fetal life and indifferent to the many meanings with which fetuses, pregnancy, and motherhood are invested. Abortion providers are witnesses to the increasing domination of everyday life by the state, professionals, and a neoliberal construction of how we should live. They hold the stories of the women they serve. We need these stories.  Our collective inability to think and speak clearly about the many forms of violence endemic in our society, particularly violence against women, has meant that spaces collapse for thoughtfully addressing the needs of women and their children, born and unborn.

In an effort to find common ground (an approach that may offer a way toward empathy across the divide), Shrage considers these splitting tactics as a kind of suffering, and hysteria. She argues for a measured view of anti-abortion activists, reminding us that they sincerely see themselves as social activists for the oppressed.  Locating our current polarization in the history of Roe v Wade and its limitations, she cautions us to view this hysteria as a response to injurious social and economic circumstances that may give special intensity to both sides of the issue:

Had the rights of women been limited in a way that recognized the inherent worth of human life and our limited duties to help, the public would not have to choose between absolute support for fetuses or for women…I am arguing that the strong sentiments and extreme tactics on behalf of fetuses are the result of controversial policies as much as preexisting differences between those on the extreme ends of this controversy (116).

In silence, we have been unable to meaningfully engage our opposition on the very significant issues of life, violence, freedom, and the rights of the fetus as balanced against the rights of women.  Clearly the need for safe, accessible abortion has not reduced. Each year, 1.7% of women aged 15–44 have an abortion, and half have had at least one previous abortion. Half of pregnancies among American women are unintended, and 21 % of all pregnancies (excluding miscarriages) end in abortion, most in the first twelve weeks. Sixty-one percent of women who have abortions have children, and 69% of those are economically disadvantaged. Over the past decade, unintended pregnancies have increased by 29% among poor women.

Contrary to anti-choice rhetoric, abortion is all about motherhood and parenting. The number of parents seeking abortions increased from 43% in 1983 to today’s rate of 61%.   In a study of women’s reasons for seeking abortions, Jones and colleagues (2002) reported that, “responsibilities for existing children and anticipated difficulties of raising a child (or another child) are concerns central to many of the women’s decisions to terminate their pregnancies”(227).  Legal scholar Pricilla Smith (2009), maintains that, “women have abortions because they feel responsible for any life they bring into the world, and they care about how any child they bear – if they are to bear one – will be mothered” (117).

The war on abortion is a war on women, involving implicit attacks on women’s moral reasoning, judgment, mental health, and serves to devalue them in society. Let’s think about the possible consequences on women’s mental health of living in this atmosphere which attacks our integrity and freedom to make our own decisions about whether and when to parent.  We do know living in a culture that continuously exposes women to both blatant and subtle forms of sexism is bad for mental health.  In Discrimination Against Women: Prevalence, Consequences, and Remedies,(1997) epidemiologists Hope Landrine and Elizabeth A. Klonoff offered the first empirically validated scale for measuring the health and mental health effects of various forms of experiences with sexism and microaggression. They found that gender-based discrimination is experienced both proximally (in personal relationships, through devaluation, exclusions, and unequitable treatment) and distally (through exposure to discriminatory practices and policies).  Their data linked gender-based discrimination/microaggressions with physical/psychiatric symptoms (depression and anxiety) among women. As the forms of discrimination that are ingrained in the pro-choice movement are disguised and packaged in the rhetoric of ‘family values,’ they become normalized and invisible.

Recently, epidemiologist Jose Baumeister, (2014) demonstrated how anti-gay marriage legislative initiatives are related to rates of depression and other forms of psychopathology.  Baumeister’s work reveals associations between anti-gay marriage states-based legislative initiatives and increased rates of depression of sexual minority young men.  Baumeister proposes that discriminatory legislative campaigns and policies  ‘‘get under our skin and into our hearts.”(10) We should anticipate and be sensitive to similar fallout for women in states with intense anti-abortion campaigns and threats to reproductive health care.  The abortion wars–this war on women–has gotten under my skin.

References SCOTUS and Womens Rights

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