The Law and Culture of Abortion Rights

[This review previously appeared in the Cascadia Subduction Zone in 2017.]

About AbortionAbortion has been legal in the United States since 1973, when Roe v. Wade was decided. Almost a third of American women have had an abortion during their reproductive years, and annually the number of abortion recipients is close to a million. Forty percent of pregnancies in the United States are unplanned.

Given those facts, it would seem that abortion should no longer be a controversial issue in this country, particularly when one looks at the many other changes in that period of time. A quick scan of pending legislation, ongoing litigation, and political rhetoric belies the numbers. It may be a legal, common, and safe medical procedure, but the ongoing debates make abortion look like something shameful, even criminal.

In About Abortion: Terminating Pregnancy in Twenty-First Century America, (published by Harvard University Press in 2017) law professor Carol Sanger provides us with a thorough analysis of the legal and cultural issues that underlie our societal attitudes. By explaining not just the existence of laws requiring such things as ultrasounds and parental notification for minors seeking abortion, but the way those regulations impose unnecessary burdens on pregnant women, Sanger gives us a deeper understanding of what is actually going on in the abortion debates – an understanding all too rare in the public arena.

In her preface, Sanger makes clear that her purpose is to write “about abortion.” Her book aims “to expose how the law often works to make the lives of women with unwanted pregnancies harder than they have to be.” But while she has deliberately not written a work of advocacy, she has written one that, at its core, gives us the true way this issue plays out in women’s lives. Noting at the end of her first chapter that the current “deluge of regulation” is based on the premise that women don’t understand what they’re doing, she writes:

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. … 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.

Sanger is an eminent legal scholar who holds an endowed professorship at Columbia Law School, so it is not surprising that she has written a thorough analysis of the legal rulings that form the basis of abortion rights in the U.S. She points out that three U.S. Supreme Court cases form “the pillars of abortion jurisprudence” – Roe v. Wade (1973), Planned Parenthood v. Casey (1993), and Whole Women’s Health v. Hellerstedt (2016). While Roe made abortion legal and set up a “detailed framework” that legislatures could use to regulate the procedure in a constitutional manner, Casey, while affirming Roe, gave states the right to try to persuade women not to have abortions. Quoting from the Casey ruling, Sanger says the court believed “most women considering an abortion would deem the impact on the fetus relevant, if not dispositive, to the decision.” She then observes, “For many women, this is simply untrue.”

But Whole Women’s Health, which overturned draconian Texas restrictions requiring abortion clinics to meet unnecessary and expensive standards, “puts state legislatures on notice that there are constitutional limits to abortion regulation after all,” Sanger says. The ruling addresses “the quality of medical care for pregnant women,” and weighs the significant cost of requiring clinics to meet the rules for ambulatory surgical centers against the benefit of such rules for women – a benefit she characterizes as “none.” She also observes that the ruling “is a grand decision not only for its substantive content, but for its tone. Indeed, the decision is an exercise in the normalization of abortion.” And normalization of abortion is the outcome Sanger seeks.

It is Sanger’s ability to combine complex legal analysis with an equally deep look at the cultural and emotional issues that accompany abortion that makes this book rewarding for anyone who wants to understand what is really going on in the U.S. abortion wars, as well as a particularly useful tool for those who are advocating for appropriate policies and regulations. Her chapter on parental involvement laws – laws that require a girl who is under eighteen to either get the consent of her parents or approval from a judge before having an abortion – is chilling. Thirty-nine states have such laws, and even in those where the judges routinely approve the request, the process is an emotionally difficult one for these young women, who must answer questions about their sex lives and the unwanted pregnancy – excruciating subjects for many women, and even more so for teenagers – while demonstrating that they are mature enough to make such a decision.

Sanger concludes that the process is humiliating and even degrading, even though the hearings are generally held in private, with the cases filed using a pseudonym. Using an administrative procedure instead of a judicial one or allowing teenagers to get approval from other adults – foster parents or grandparents, for example – for their treatment can make the system more responsive to the actual needs of the young women involved. Even better, Sanger points out, the states without parental consent laws rely on doctors, who are quite capable of evaluating whether a patient is giving informed consent. And once again, she emphasizes respecting the women involved: “But it is not beyond our collective talents to reconcile social concern about the well-being of pregnant young women with respect for their own judgments about what is best for them when unwanted motherhood is on the line.”

A chapter on fetal images in our culture begins with discussion of a press release from an anti-abortion group that saw a fetus in the shape of Hurricane Katrina and took that as a sign of God’s wrath. Sanger writes about many other fetal images, including huge art works and the plastic fetus dolls given out in high schools, where these objects quickly led to “doll-related disruptions” because they were used as projectiles or to stuff up toilets. In Japan, where abortion has been legal since 1948 and is widely accepted as a medical procedure, statues representing aborted and miscarried fetuses are sometimes set up at shrines.

This cultural discussion provides a useful backdrop for the next chapter, which discusses laws requiring women to submit to ultrasound to get images of the fetus and even, in some cases, to listen to a doctor’s description of it. As with many other laws regulating abortion, these are intended to convince women not to have the procedure and are based on the assumption that women don’t know what they’re doing when they decide to end a pregnancy. Because of the prevalence of fetal imagery in our society, including the now-common practice of including ultrasound images as the first picture in a baby book, women know before getting the imaging done what it stands for, Sanger argues. Ultrasound images are not the non-misleading data that the statutes assert; such claims do not take into account “the cultural significance of having an ultrasound in the first place.”

Again, it is this incorporation of the broader cultural implications into legal analysis that makes this book so valuable to its readers. A discussion of the difference between privacy and secrecy also adds to our knowledge. Something is private when it is no one else’s business, but the concept of secrecy includes shame and the fear of being found out. Sanger writes:

Abortion secrecy harms women by distorting their public lives – lives lived in public space – and their private talk as both the burden of keeping a secret and its unbidden disclosure are ongoing sources of stress and anxiety. It also distorts the quality of lawmaking by omitting from public consideration whatever information would emerge if abortion were not a discrediting closeted matter.

The closing chapter is titled “Normalizing Abortion,” and it ties together all of the cultural and legal discussion of the book. Sanger writes, “Normalizing abortion – recognizing it as an acceptable option to the predicament of an unwanted pregnancy – is not to trivialize the decision nor to make choosing abortion the new normal. The aim is to pry abortion loose from the confines of a paralyzing secrecy so that the possibilities can be discussed. …” And while Sanger points out that culture that links abortion to shame and secrecy “presents a significant challenge to the project of normalization,” she looks at the history of changed social attitudes in the United States and finds it built on open acknowledgement of things once kept secret. When people in our society have friends who are from a group they thought they despised, they change their attitudes – but only when they know their friends are in that group.

I have one small quibble with this book. Sanger occasionally refers to anti-abortion advocates as “pro-life.” The choice of that term by those opposing women’s right to control their own bodies was a brilliant political decision, but it is a loaded phrase that should not be used by anyone reporting on the issue and certainly not by anyone who thinks abortion should be legal. The use of it implies acceptance of its premise.

That minor point aside, Sanger has written a book that provides the cultural context as well as the legal analysis necessary to move forward on abortion and other reproductive rights in an effective and constructive way. Everyone concerned with women’s reproductive rights – and particularly those engaged in introducing abortion legislation – should read this book.



The Law and Culture of Abortion Rights — 7 Comments

  1. I have long held that instead of putting so much tine, money, and energy into anti-abortion campaign, we should be concentrating on reproductive education. More than the mechanics of tab A into slot B.

    Too many people go around shouting that kids already know too much about sex. If they did girls wouldn’t be getting pregnant at the rates they do and they’d also learn that they have the right to say no.

    Sex is a lot more than peer pressure to make another notch on the belt buckle.

    Statistically schools with a sound sex education have about 75% FEWER teen pregnancies that schools that teach only abstinence. Good girls get caught, knowledgeable girls know how to avoid the problem.

    Let’s face it, people, especially teens, think with their hormones not their brains. The need for abortion will always be there. By keeping it legal we can keep it safe. Make it illegal and it moves into back alleys with coat hangers.

    Education is the part of the solution to a very complex situation.

    • Yes to everything you said. I was so fortunate to have great sex ed from my mother, and when I was ready to start having sex, I was obsessive about using protection of some kind. Ignorance doesn’t protect anyone.

  2. A good friend of mine says that there is a difference between being ‘pro-life’ and simply being ‘pro-birth.’ Most of these people who are rabidly anti-abortion do not at all care about the life of either the mother or the child. I wish I had come up with this thought because I agree wholeheartedly, but I have to give credit where it is due.