In his recent book, Bearing Right: How Conservatives Won the Abortion War, William Saletan concludes that “Thirty years after

“Pro-Choice or No Choice” . . . and Other Alternatives

Annual Roe v. Wade Lecture, Center for the Study of Women, UCLA, January 20, 2004

Laurie Shrage

Professor, California State Polytechnic University

In his recent book, Bearing Right: How Conservatives Won the Abortion War, William Saletan concludes that “Thirty years after Roe . . . [abortion rights activists] had saved Roe, but in the streets and in their souls they had lost the struggle to define it.”[1] Saletan’s book chronicles the state-level campaigns, of the past decade and a half, waged by abortion rights groups to block the passage of numerous restrictions on access to abortion. In order to win support from local constituencies and legislators, abortions rights activists began, in the mid-1980s, to appeal to notions of ‘privacy’ and ‘choice’ attractive to anti-welfare conservatives, pro-gun extremists, anti-government and pro-segregationist southerners, and pro-family/anti-feminist religious organizations. For example, in order to fight a proposed constitutional amendment in Arkansas prohibiting the use of public funds for abortions, Saletan writes:

Far from challenging the public’s resistance to welfare spending, the activists exploited it. . . . Planned Parenthood, the ACLU, and the Arkansas Women’s Political Caucus told taxpayers that the amendment would force them to subsidize prenatal care for all pregnant women. A pro-choice fund-raising letter claimed that the amendment would require “tax-supported state maternity centers” to provide “free prenatal care.”[2]

Pro “choice” groups not only exploited the public’s prejudices toward women on welfare to defeat funding restrictions for abortion, but their state campaigns also championed the rights of families to choose, rather than the rights of women, according to Saletan.[3]

Saletan investigated NARAL’s “Who Decides?” campaign, which frequently invoked images of intrusive government power invading the privacy of the traditional family, in order to win anti-government, pro-family, Reagan conservatives to the “pro-choice” position.[4] By framing the issues in libertarian terms, Saletan argues that “NARAL had found its niche and its constituency. It would become the master, and the servant, of conservative, pro-choice America.”[5] According to Saletan, NARAL’s hired political consultants urged abortion rights activists to avoid talk of women’s rights and to “assure the public that in a pro-choice world, doctors, clergy, and family members would have a say in abortion decisions.”[6] While, in theory, NARAL opposed funding restrictions and parental approval requirements, on a number of occasions NARAL tacitly supported candidates who favored them and refused support to more liberal candidates who opposed them.

Ultimately, what Saletan shows is that, as groups like NARAL and, to a lesser degree, Planned Parenthood and NOW expanded their political base to preserve the essentials of Roe, they did so in a way that compromised the choices of poor women and teenagers. Moving through the trenches of various state-level battles, the feminist, pro-Roe, “pro-choice” movement of the late 1970s ended up in bed with “conservative, pro-choice America” by the late 1980s and 90s. Although the latter coalition of interests can command electoral majorities, conservative “pro-choice” voters oppose public funding of abortions, even those needed to preserve a woman’s health, and they support parental and (even husband) approval laws and waiting periods, and more recently oppose so-called “partial-birth abortions.” This is why conservatives, and not liberals or feminists have won the abortion war, according to Saletan. For, rather than defeat restrictions on access to abortion, the politics of anti-welfare, pro-family, and anti-government have resulted in there being numerous restrictions in place today, placing safe and legal abortions out of reach for low-income and young women.

One lesson of Saletan’s interesting book is that there are no easy or simple answers to the question of how to promote policies on abortion that would expand the reproductive options of all women. As a journalist, Saletan offers a politically astute account of events, but he does not second-guess his subjects by speculating about how alternative strategies might have worked or by proposing more effective strategies for the future. Moreover, his account of the events forestalls any easy conclusions, such as, that abortion rights activists should defend their proposals only in feminist and liberal terms. It’s fairly evident in 2004, that conservatives have won not merely “the war on abortion” in Saletan’s sense, but many other major political battles in our country as well, especially on military spending, tax policy, the environment, and so on. The campaigns of groups like NARAL may simply reflect a kind of pragmatic feminism, a politics of preserving the core gains women have made, rather than a politics of attempting the impossible and risking political marginalization.

Although I am sympathetic to pragmatism and compromise, I am going to argue, that the pragmatic compromises made by pro-choice groups in the past decades represent a defensive and uncritical pragmatism. One assumption, rarely opened to debate, is that that the Roe decision was a complete victory and therefore what is most needed now is simply efforts to protect the fruits of that victory from being whittled away. Before Roe, pro-reform and pro-repeal feminists debated alternative policies for expanding the reproductive options of all women, but now it’s considered heretical in pro-choice circles to question whether the repeal strategy that Roe brought to success has achieved its aims. I will argue that Roe represented a victory for feminists, but the victory was a mixed one. There are parts of Roe that should be problematic for liberals and feminists, as well as conservatives, parts that may be contributing to the polarization of the public on the abortion issue. The upshot is that Roe is not synonymous with women’s reproductive rights—it is, or was, merely a means, and maybe it wasn’t the best means to obtain greater political rights. Moreover, I think one lesson of the last several decades, as well as Saletan’s book, is that while reproductive rights may be separable rhetorically from liberal and feminist agendas, in practice, reproductive freedom for women is not achievable without basic health care rights and, in general, a larger economic security net, and better educational and job opportunities for average people, and so on. Although these ideas are hard to sell in the current environment, I don’t think a pragmatic feminism can avoid thinking about how to sell them.

In the remainder of my time today, I will briefly outline some of the objections to Roe that have been made by liberal legal and political theorists. Because the reproductive rights movement has been consumed with trying to stave off attacks by social conservatives, we have tended to ignore criticisms of Roe coming from progressives. Yet I think addressing these criticisms will give us a way to articulate new policies regarding abortion, rather than merely fighting off the restrictions proposed by others. Basically there have been two lines of criticism of Roe advanced by theorists on the left. One line of criticism finds fault with the appeal to privacy in Roe to decriminalize abortion. Some of the theorists who advance this line of criticism argue that access to abortion should be defended on equal protection grounds, rather than privacy. The second line of criticism is that the Roe decision was an instance of unnecessary judicial activism, and resulted in judge-made law or laws made by elites, thereby compromising the democratic institutions of our society. I will explore each of these lines of criticism, and explain why I think the second line of criticism needs to be taken more seriously, and then end with a few proposals for rethinking abortion rights activism in light of this second type of criticism.

Justice Ruth Bader Ginsburg, to whom many of us look right now as a secure vote on the Court for upholding Roe, has in the past advanced both lines of criticism against Roe. In 1992, she wrote: “Roe . . . halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue.”[7] Here, in an NYU law review article, Ginsburg invokes the second line of criticism I just identified, alleging that the Court created “a regime blanketing the subject, a set of rules that displaced virtually every state law then in force.” She also invokes the first line of criticism by writing that, “the Roe decision might have been less of a storm center . . . had it both homed in more precisely on the women’s equality dimension of the issue and, correspondingly, attempted nothing more bold at that time than the mode of decisionmaking the Court employed in the 1970s gender classification cases.” In this passage, Ginsburg is faulting the Court for grounding its decision on controversial constitutional guarantees of privacy, rather on the less controversial constitutional guarantee of equality under the law. In short, she is criticizing the legal basis of Roe not for being wrong in theory, but for appealing to a less established and accepted principle.

However, other liberal theorists have criticized the privacy basis of Roe for problems they find within the basic doctrines of privacy. Cass Sunstein, for example, argues that both criminalizing and decriminalizing abortion can be viewed as interfering with privacy, because in each case the government is taking sides on the acceptability of nonprocreative sexuality. By criminalizing abortions, the government is taking sides against the separation of sex and reproduction and, by decriminalizing it, the government is taking sides in favor of their separation. Thus the principle of privacy alone doesn’t really decide the abortion question, unless a position of government neutrality can be found. With no neutral position, Sunstein concludes that the government should avoid taking sides on questions about the purpose of sex.[8] Saletan’s book makes a similar point by showing that protecting ‘privacy’ and ‘choice’ mean different things to conservatives and feminists, and therefore advocating “choice” is in some ways meaningless. To social conservatives, ‘privacy’ and ‘choice’ mean that the government will not interfere with the traditional family, especially the rights of parents and husbands who may want to deny abortions to their daughters or wives. To libertarian conservatives, ‘privacy’ and ‘choice’ mean that the government will not order taxpayers to pay for the abortions of poor women. Thus protecting privacy and limiting the government’s reach, to some, is synonymous with the courts upholding both public funding restrictions and parental approval requirements. To feminists and liberals, ‘privacy’ and ‘choice’ mean that the decisions of individual women will be protected from interference by parents and husbands, as well as state bureaucrats and politicians. Protecting ‘privacy’ for us means removing funding and approval restrictions that coerce particular choices. Each side has very different notions of what government neutrality means in terms of not invading citizens’ privacy with respect to pregnancy and abortion, and the confusion between these different conceptions, according to Saletan, has been politically useful to “pro-choice” activists for winning conservatives to the “pro-choice” side. However, in a judicial context, the competing conceptions of ‘privacy’ show that the idea is open to legal interpretations that are not particularly helpful to feminist and liberal causes.

Sunstein, like Ginsburg, argues that equal protection doctrine provides a more coherent and defensible foundation for abortion rights. To provide this foundation, Sunstein and Ginsburg connect abortion rights to the achievement of economic and civil equality between women and men. The idea here is that women must have the ability to control their fertility in order to gain full equality of opportunity with men, and also to insure that the state is not burdening women with responsibilities the government does not impose on men. I have argued elsewhere that although I think equal protection defenses of abortion are promising, they too can be challenged in ways similar to the privacy defense. For example, conservatives can argue that women have the ability to control their fertility with abstinence or the responsible use of contraceptives. Liberals can argue, in response, that requiring abstinence and 100% reliable contraceptive use of women is unreasonable. But this response assumes that women have the right to be sexually active and control their fertility, which involves defending a particular conception of the purpose of sex, contrary to Sunstein’s notion of government neutrality. Similarly, some conservatives argue that although the government imposes different responsibilities on men and women (e.g., military duty for men), these duties represent equal burdens. Sunstein tries to address this claim by arguing that the government’s imposition of duties in gender-stereotypical ways (e.g., military duty for men, pregnancy duty for women) undermines gender equality. Although I agree with Sunstein, he fails to note that defending a conception of gender equality in terms of identical, rather than comparable, burdens and privileges involves defending a controversial stance on the meaning of gender equality—one not all conservatives and progressives agree with.

My point here is not that equal protection doctrine has un-fill-able wholes and gaps, but that filling the wholes will involve intellectual and doctrinal leaps as controversial as those needed to defend a particular conception of privacy. Thus I tend to prefer a more eclectic, and perhaps pragmatic, approach to defending abortion rights, which is to develop both privacy and equality grounds for defending them. I think the recent Lawrence v. Texas ruling (which invalidated all remaining anti-sodomy laws), for example, shows that establishing and expanding privacy doctrine in the right sort of way can be important to liberal and feminist agendas. (Sunstein has recently argued, in the journal Commentary, that Lawrence should have been justified on equal protection grounds, which is of course the position Justice O’Connor took in her concurring opinion—so he’s been consistent on this issue, but I think here again there are advantages to both lines of argument. Equal protection would have been the more cautious route to take, making the ruling less subject to a future reversal, but expanding privacy in the way Lawrence did, which invalidated all state anti-sodomy laws, seems an important step in establishing a conception of privacy that will protect sexual dissidents.)

Another criticism of Roe’s privacy appeal by liberals is that if abortion is represented as a “private” matter, beyond government involvement, then it follows that the government doesn’t need to be involved in paying for abortions. That is, some liberals and feminists blame Roe’s appeal to privacy for supplying a rationale for the removal of public funding for abortions that followed in the wake of Roe. These critics observed that, when the funding restrictions were challenged, the courts used privacy-based justifications to uphold these laws. But not all progressive theorists are ready to abandon privacy because of its libertarian resonances and utility. For example, the feminist legal scholar Anita Allen argues that there are positive as well as negative conceptions of protecting privacy. Whereas a negative conception emphasizes limiting the government’s reach, a positive conception of protecting privacy may require the government to take action to protect women’s decisions about childbearing from economic and other forms of social coercion. Such action could include government assistance in removing funding obstacles to reproductive health care, as well as publicly- supported comprehensive counseling services and so on.

Furthermore, Allen points out that equal protection doctrine is not typically interpreted in American constitutional law to require that the government make resources available to the poor so that they genuinely have the ability to take advantage of opportunities and privileges to which they are entitled equally under the law. So there is no reason to think, according to Allen, that justifying abortion rights in terms of equal protection would be more likely to guarantee funding for abortions. I don’t think Allen is recommending privacy-based appeals over equal protection ones; rather, I take her to be cautioning against dismissing privacy doctrine and justifications for defending feminist understandings of reproductive freedom. In this respect I agree with Allen, but I’m not a constitutional law scholar and thus I don’t intend to weigh in on which defense of abortion is likely to work best in the context of our judicial system. I am willing however to defend a conclusion concerning practical politics, which is that merely substituting equal protection justifications for privacy ones will accomplish little in terms of depolarizing the public debate and addressing the concerns about legal abortion that many opponents have. To do this, I think understanding and addressing the second line of criticism advanced by liberal theorists will be more useful.

The second line of criticism involves the issue of judicial restraint, which is the idea that the courts should not usurp the legislative powers of the states and the people. This raises issues not only of states’ rights (which many of us associate with recalcitrant southern states in regard to segregation, but we may soon come to associate with progressive north eastern states on gay marriage), but also the issue of how much we are governed by political and economic elites rather than by genuinely democratic processes. Roe was thought to undermine both states’ rights and democracy in a number of ways. First, the ruling invalidated abortion laws in all fifty states, and not just a dozen or so states that might be out of line with the rest of the country. Second, the ruling imposed a set of guidelines for future laws that left the states little room to regulate abortion in the ways that the majority of voters in many states favored. Because of this, over the past several decades, we have witnessed a great deal of resistance to Roe, especially in the form of restrictions on funding and new approval requirements—restrictions that affect the access of some groups of women more than others. Thus, my contention is that if we want to understand how to defeat restrictions that have especially made abortion services inaccessible to poor women and teenagers, we need to understand where the impetus for the multitude of restrictions is coming from. Moreover, we should consider whether there might be guidelines that would provide states and voters with ways to regulate abortion without resorting to restricting abortion for the most vulnerable women.

To put this in a broader perspective, I think it helps to look at how other countries regulate abortion. Many countries around the world liberalized their abortion laws in the 1970s and later, and there are some interesting patterns in the ways that different countries, especially democratic countries, legally regulate abortion. First, there are many countries in which abortion is legal only if a woman has a serious reason, such as, if her pregnancy is life- or health-threatening, if her pregnancy resulted from a crime such as rape or incest, or if there is a serious fetal impairment.[9] Second, there is another group of countries in which there is an initial period of unrestricted access to abortion, followed by a period in which abortion is legal only if the woman has a reason, such as one of the reasons above. Third, in the countries in which there is a period of unrestricted access, this period generally coincides with the first trimester of a pregnancy, or roughly the first 10-14 weeks. Women who seek abortions in cases in which the pregnancy involves no health threat, criminal act, or unusual fetal condition are expected to obtain abortions during this initial unrestricted period, and in some of these countries the public health care system makes it feasible for virtually all women to do so.

In the U.S., the Roe ruling set the upper limit for the initial period of unrestricted abortion at the stage of fetal viability, which in 1973 was understood to be about 28 weeks, but which is now around 24 weeks. Only two or three other countries in the world have such a permissive upper limit for unrestricted abortion. Thus, by worldwide standards, the regulatory guidelines imposed by Roe are somewhat extreme. These guidelines were also extreme relative to the guidelines many states were in the process of putting in place. Some states had, and others were moving towards, abortion laws somewhat similar to what we see in many countries, either a 12 or so week period of unrestricted abortion, or no such period for unrestricted abortion, but an expanding set of reasons for which abortions would be tolerated.

I do not think it serves feminist political agendas or women’s interests to try to defend the guidelines Roe imposed, in particular, six months of unrestricted access to abortion. My reasons for thinking these guidelines are indefensible are both practical and philosophical. On the practical side, defending these guidelines positions reproductive rights activists as extremists, forcing us to treat incipient human life—even in the relatively advanced stages of pregnancy—as if it has little or no value and deserved little or no protection. Moreover, few women seek abortions after the first trimester, and the few who do usually have a serious reason for seeking an abortion. By continuing to defend Roe’s six-month window of unrestricted access, opponents of legal abortion can easily find wedge issues, such as the so-called “partial birth abortion” issue to manipulate public opinion. Also, by continuing to defend policies not supported by a large majority of the public (six months of so called “abortion on demand”), reproductive rights activists have had to wage campaigns of deception and fear to keep the public on their side. This was one of the things I found most depressing in reading Saletan’s book, the extent to which groups like NARAL have resorted to deceptive and manipulative ads, worthy of the creators of the Willie Horton ads, to defeat restrictive legislation. Saletan describes state campaigns in which “pro-choice” ads were deliberately fashioned to misinform viewers about the consequences of a particular piece of legislation, for example, to make anti-government voters think that a funding restriction bill could actually mandate taxpayer subsidies for abortion.[10] Some ads exploited voters’ racial stereotypes of, and punitive attitudes toward, criminals by suggesting, wrongly, that some restrictions might limit the rights of parents or husbands to choose abortion for a raped daughter or wife, thus protecting the illicit seed of criminals over innocent girls and women. Also, ads that focused on abortions for rape victims reinscribed the good girl/bad girl dichotomy, with good girls being those who did not voluntarily choose sex, and who therefore deserve abortions.[11] Today, the ads of the Pro-choice Public Education Project, an umbrella organization of reproductive rights groups, raise the slippery slope fear that if the right to abortion can be taken away, so can a woman’s right to vote or to engage in work outside the home.[12] These ads misinform viewers by suggesting that the right to an abortion in any circumstance is in jeopardy, rather than simply the right to an abortion without restrictions. Their recent slogan, “It’s pro-choice or no choice,” also is misleading in this way. For what’s really at issue are not two extreme alternatives, legal abortion or not, but rather how abortion services and our choices will be restricted.

On the philosophical side, even if we hold that women should be able to choose abortion for any reason through the first six months (or after), there are many different and legitimate perspectives on this, and generally in a democracy we work out policies that reflect a compromise among different groups. Although I think it’s important to establish laws that grant women decision-making authority when it comes to their reproductive lives, this authority need not be absolute, canceling out all other interests, including all of our interest in not trivializing the destruction of human life. Laws providing women with a three-month window of unrestricted access, followed by rules permitting access when a pregnancy involves some kind of medical or social hardship, can respect women’s rights to privacy and equal treatment. Moreover, in terms of access for the majority of women, defending funding for abortions and, in general, adequate public assistance to women and children, is more important than defending three additional months of unrestricted access, abortions that are only unrestricted for the rich. NARAL and Planned Parenthood have repeatedly sacrificed poor women’s interests to protect Roe, for example, when they opposed the current Bush administration proposal to make the fetuses of low income women eligible for funding under SCHIP (State Children’s Health Insurance Program), a policy that undermines the attempts of libertarian conservatives to deny assistance to children born to mothers on welfare.[13] Rather than oppose any legal recognition or protection for fetuses before viability, it would be better to articulate limited forms of protection that would serve the interests of women who choose to continue their pregnancies, while allowing exceptions for those in hardship cases that don’t. Furthermore, adopting abortion policies more congruent with public opinion, which is decidedly against unrestricted access after the first trimester, may result in voters finding less need to restrict abortion by removing all funding. In other words, the public may be more willing to pay for abortions when the abortions that are legal are the ones most voters approve, and voters tend to approve of abortions that take place in the early stages of pregnancy or that are required because the pregnancy poses a special hardship. Thus rather than focus on preserving every detail of Roe, reproductive rights activists would do better to articulate and support reasonable and fair restrictions on abortion. By accepting some restrictions—such as those that have been adopted by most countries in the world where abortions are legal, and were adopted by a few states before Roe—we can defuse the drive for unreasonable and unfair restrictions, especially the funding, approval and counseling restrictions. These restrictions are aimed at getting around Roe’s framework, and they do so by making abortions inaccessible to the most vulnerable women.

On a historical note, the viability cut-off was introduced and promoted by Justice Lewis Powell, who later supported funding restrictions and parental approval requirements, and who also voted with the majority in Bowers v. Hardwick, which denied the protections of privacy to the intimate acts of same-sex couples. Powell promoted the viability cutoff because he thought that, once the Court decided to strike down the Texas abortion law on privacy grounds, three months of unrestricted access (which Justice Blackmun had first proposed in a draft of the majority opinion that he circulated to his colleagues) was not sufficient to keep the government uninvolved.[14] But, we see from later decisions, that Powell’s notion of privacy was primarily a negative and conservative one, consistent with restricting abortion for the most vulnerable women—especially, poor women and teenagers (and, with the restrictions now in place, affect women serving in the military, federal employees, and poor women around the world who depend on health care agencies from which the U.S. has removed funded). Rather than defend a negative, libertarian conception of privacy that involves six-months of no government involvement, reproductive rights activists would do better to defend notions of privacy that protect the decisions of poor women, teenagers, government workers, and so on, from economic and other forms of social coercion. Such positive and progressive notions of privacy require government involvement of the sort that would make it feasible for all women in non-hardship cases to obtain abortions in a shorter timeframe—a timeframe consistent with public concerns for fetal human life.

Libertarian, anti-welfare, anti-social security, and anti-universal health care conservatives have promoted their causes with populist appeals, such as that we should “trust the people” to make their own choices rather than impose the government’s choices on them. Riding on this populist bandwagon, Planned Parenthood and other pro-choice groups launched a campaign with the slogan “trust women” to make their own choices about abortion.[15] Rather than devise alternative populist campaigns, such as “trust women,” I would urge reproductive rights activists put more faith in democratic institutions. What this means is not waging cynical campaigns of deception and fear, in order to manipulate votes. It means being willing to make legislative compromises that reflect the reasonable views on all sides. It means defending women’s rights to privacy and equality, but recognizing that these rights are not absolute, and must be balanced against the rights of others, and against public interests. It means defending an understanding of privacy that would expand people’s reproductive rights, rather than conflating competing understandings of “privacy” in order to appeal to anti-welfare, anti-government, anti-crime, pro-gun, pro-family, or pro-segregation, social conservatives. Trusting democracy also means promoting open dialogue within pro-choice organizations. Another change in the feminist reproductive rights movement that Saletan’s book records is the way that pro-choice organizations have adopted a top-down management style, taking their cues from hired political consultants and their focus groups, while ignoring the input of their core staff and activist members. Pro-choice groups should be accessing the perspectives of different groups of women, and listening to feminist activists, artists, and writers, rather than the consultants who serve the political establishment in this country and who serve up such hollow populist rhetoric as “trust women.” In other words, leaders of the “pro-choice” movement need to get in touch with their primary political base, which I assume is still feminist-oriented voters. Finally, democratizing “choice,” rather than selling an empty label, means recognizing that Roe was just a means and is not the end, and that, at some point, we should evaluate whether the means has been effective. I think it’s fair to say, with thirty-plus years of hindsight that had the Court not been so activist, the debate over abortion might have become less polarized, and there may have been less of a backlash. Had this been the case, the feminist movement might have been able to focus on other agendas such as a national childcare policy, rather than become, in the public’s eye, a movement to protect abortion rights.

Although we can’t redo history, we can study it and learn from it. The lesson I’ve drawn from studying the debates that have ensued over Roe is that some of its liberal critics are right. In particular, some aspects of Roe undermined the workings of our democratic government, which resulted in a storm of bureaucratic and legislative resistance. The purpose of my talk today is to encourage others to think about how to undo some of this damage, so we can move forward and expand the reproductive rights of all women, as well as attend to other pressing issues.

[1] Bearing Right: How Conservatives Won the Abortion War (Berkeley: Univ. of California Press, 2003), 278

[7] “Speaking in a Judicial Voice,” New York University Law Review 67 (December 1992) [Lexis-Nexis document, obtained 2/16/02]

[8] “Neutrality in Constitutional Law” Columbia Law Review 92, (Jan. 1992): 30-1.

[9] See “The World’s Abortion Laws,” Center for Reproductive Rights

[14] David Garrow, “Revelations on the Road to Roe,” American Lawyer, (May 2000): 80-83. See also my discussion of Powell’s defense of the viability criterion in Abortion and Social Responsibility: Depolarizing the Debate, (Oxford UP, 2003): 12-22.