The Problematic Framing of Abortion as an Issue of Privacy


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Commentary Abortion

The Problematic Framing of Abortion as an Issue of Privacy

One key reason for the success of state legislatures in restricting women's right to choose might be that the fight over abortion in the United States historically has been framed as an issue of privacy. And the right to privacy offers poor protection for what is also an issue of life, health, and—above all—discrimination.

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Over the past months, candidates for the Republican nomination for president have fallen over each other to declare their opposition to abortion rights. Research indicates that they needn’t bother: states are quite capable of restricting women’s access to abortion without help from the federal government. In fact, 2011 was a record year for the passage of state provisions to limit abortion access since 2003.

The success of state legislatures in restricting women’s right to choose is surprising given the fact that, when asked, slightly more Americans consider themselves “pro-choice” than those who say they are “pro-life.” But one key reason might be that the fight over abortion in the United States historically has been framed as an issue of privacy. And the right to privacy offers poor protection for what is also an issue of life, health, and—above all—discrimination.

In this sense, the opinions issued by the US Supreme Court in abortion-related cases can in some ways be seen as indicative of what is happening across the country. In the earlier cases the Court established a balance between women’s autonomy and the government’s legitimate interest in the protection of growing fetal life. This balance was successively undermined over time, culminating with the Court, in 2007, declaring it constitutional to criminalize a specific abortion procedure even for women for whom this procedure is the least likely to jeopardize their health.

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To reach this conclusion, the Court explicitly placed moral concerns over a narrowly constructed right to privacy. Justice Ginsberg alone dissented, noting that the mandate of the Court was to protect the rights of all, not the morals of some. But, on the face of it, such weighting is not an entirely unreasonable conclusion. After all, universal morality would appear to be a broader and more applicable common good than guaranteeing the right of a handful of women to a specific medical procedure because of concern for their private lives.

Or not.

Because what is at stake is not just, as Justice Ginsberg also noted, some generalized notion of privacy but rather women’s ability to realize their full potential. Or, put differently, when a government unduly limits access to a medical procedure only women need, it not only infringes their privacy, it engages in blatant discrimination.

Discrimination, as it happens, is also a better rallying cry for activism. It is noteworthy that while states have imposed many abortion restrictions over these past years, the push for marriage equality (also a pet peeve of Republican candidates) is gaining momentum. True, a majority of states still have legal or constitutional provisions on the books defining marriage as between one man and one woman. But more and more states are passing laws to allow same-sex partners equitable partnership rights in circumvention of those provisions. Perhaps more to the point, the push for marriage as a matter of equality rather than a private concern for those living in same-sex couples has led to broad support for general reform. An April 2011 CNN national opinion poll foundmajority support for same-sex marriage.

What is striking in comparing these two issues is that abortion access is more directly relevant to a larger number of people in the United States than sex-same marriage is. More than half of American women will experience an unintended pregnancy and 30 percent will have had at least one abortion by age 45. In comparison, little under 4 percent of the American population identifies as gay, lesbian, bisexual or transgender, of whom presumably only a proportion will want to settle in a same-sex marriage.

The broad support for marriage equality is certainly a testament to the organizing power of the LGBTI movement. It is also a reflection of more motivating messaging: same-sex marriage is an issue of equality that affects us all—an early court decision in Vermont on same-sex partnership rightly referred to “our common humanity” as the central point.

By contrast, through keeping its main focus on privacy the movement for abortion access is hamstringed: it divorces profoundly private decisions from general support for parenting, women’s equality, and access to comprehensive health care. Partially because of this, many women and girls who need abortions feel they are alone in battling the restrictions that apply to their situation, be it mandatory waiting periods, the additional cost of medically unnecessary sonograms, or the ban of the abortion procedure that best serves their health.

Governments absolutely have an interest in and right to regulate the provision of and access to medical services, including abortion. But the regulation cannot be based on the personal morals of the legislator or on a poorly veiled intention to eliminate needed health care options for just some people—in this case women.

Or, as Justice Ginsberg noted: “Our obligation is to define the liberty of all, not to mandate our own moral code.” Privacy does not adequately express that sentiment. It also does not adequately express the fact that abortion is a medical intervention three out of ten women in the United States will have needed by the time they are 45. Imposing undue burdens on access is an affront to us all.