A widely circulated feminist poster reproduces a scarifying police photograph: a woman, dead of a botched illegal abortion, lies naked and bloody in an empty room. For a time it seemed that that image was fading, that it might actually pass into history. Now, abruptly, it is as vivid as ever. On June 20th, 1977, six white male Supreme Court justices decided that Connecticut and Pennsylvania need not pay for elective abortions with state Medicaid funds and that the city of St. Louis need not provide such operations in its public hospitals. The state still owns our bodies – unless we can afford ransom.
It is a bitter shock to wake up and find yourself losing a battle you thought you had largely won – especially when you had fought so hard and won so much in such a short time. In 1969, when feminists began making militant public demands for repeal of the abortion laws, abortion was illegal, except in special circumstances, in every state. Legislative debate on "abortion reform" was mainly confined to the issue of whether women who were sick or crazy or had been raped by their fathers deserved to be excused from forced childbearing. By 1970 the political climate had changed drastically. New York, which had resisted the most minimal "reforms," passed the most liberal law in the country: it permitted abortion for any reason during the first twenty-four weeks of pregnancy. In 1973 – after three more years of feminist demonstrations, speakouts, lobbying campaigns and lawsuits – the United States Supreme Court ruled that laws prohibiting abortion during the first six months of pregnancy violated women's constitutional right to privacy.
The Supreme Court's decision was by no means a total victory. It did not invalidate all abortion laws, and it specifically rejected the feminist contention that a woman has an absolute right to decide whether or not to bear a child. Antiabortionists quickly moved to test the limits of the decision by pushing for a whole new set of abortion statutes requiring a husband's or parent's consent, forbidding the use of public funds for abortions, permitting hospitals and medical personnel to refuse on moral grounds to provide or perform them and so on. Some states have passed blatantly unconstitutional laws (like Louisiana's law making abortion a capital crime). In other communities public officials have simply ignored the decision, and social and political pressure has ensured that abortion remains unavailable, or available only at an exorbitant price. For all too many women who cannot afford to go to a private doctor or travel to a liberal state, the right to safe, legal abortion has never been more than theoretical.
Still, the decision led to what proved a disastrous complacency. Once most middle-class women could get abortions, feminists found it difficult to generate the energy needed to keep pressing their original demand – repeal of all abortion laws. It was even harder to maintain a sense of urgency about defending what had been won. The conservative resistance – including the campaign, instigated and largely financed by the Catholic Church, to pass an anti-abortion constitutional amendment – seemed a futile rear-guard action. Legal abortion was popular; polls showed that a majority of people supported it (including a substantial percentage of Catholics). If many women concluded that the struggle was over, others forgot – or never knew – that there had even been a struggle. "I only had a vague idea that there was a proabortion movement," a woman I know said recently. "I just knew that at one point abortion was illegal, and then it wasn't."
Last year Congress passed the Hyde Amendment, which cut off federal Medicaid funds for abortion except to save the woman's life. Opponents of the amendment filed suit, and Federal District Judge John F. Dooling issued an injunction staying its enforcement. Defenders of abortion rights were also contesting the Connecticut, Pennsylvania and St. Louis regulations. Feminists and civil libertarians assumed that the Supreme Court would declare all these restrictions unconstitutional.
But another major political shift was taking place. Since Nixon's 1972 landslide, the government's rightward drift had been gaining alarming momentum. Widespread unemployment and massive cutbacks in social-welfare spending were having a particularly severe impact on women and minorities. At the same time, the fundamentalist right was mounting its defense of the patriarchal family against abortion, homosexuality and the Equal Rights Amendment. Jimmy Carter was continuing Nixon-Ford's economic policies while encouraging the sexual backlash with his opposition to abortion, his emphasis on traditional family virtues and his unctuous Christian piety. In the face of this dual reactionary assault, the women's movement – like the black movement and the left generally – was in retreat. The ERA, a broadly popular (and scarcely radical) measure, was in deep trouble; the anti-abortion movement was looking less and less like a futile rear guard. Given this ominous atmosphere and the basic conservatism of the Nixon Court, the June 20th rulings should have been no surprise.
And so, in 1977, for women without money it is 1969 again. The fact that the state is forbidden to interfere directly with a woman's right to end her pregnancy does not, in the Supreme Court's view, invalidate state policies that effectively prevent many women from exercising that right. After June 20th, the Court directed Judge Dooling to reconsider his injunction against the Hyde Amendment. In light of the Court's new rulings, Dooling lifted the injunction, ensuring that until October 1st, the end of the fiscal year (the Amendment was part of an annual appropriations bill), poor women would not be able to get abortions except in states like New York, where the state government had agreed (for the time being) to make up the difference. The House and Senate have passed two versions of a new bill outlawing federal Medicaid funds for virtually all abortions; at the time this article went to press, reconciliation of the bills and final passage were expected shortly. It is unlikely that many states will follow New York's example. The trend is exactly the opposite; over twenty states have already passed laws authorizing a cutoff of state funds for abortions. The antiabortion lobby can be expected to press for similar bans in every state.
We are facing a social crisis. Last year 300,000 legal abortions – one-third of the total – were financed by Medicaid; one-third of the recipients of Medicaid abortions were teenagers. The cutoffs will affect not only the indigent but all women who cannot manage on short notice to scrape up the $150 to $300 fee for an early abortion (late abortions are of course much more expensive). Economically dependent women who for whatever reason cannot tell parents or husbands they need an abortion are particularly vulnerable.
In addition to burdening thousands of women with unwanted babies and driving thousands of others to dangerous hacks or attempts at self-abortion, the ban on free abortions is likely to aggravate the problem of sterilization abuse – that is, the practice of sterilizing women (generally poor minority women) without adequate safeguards to assure their informed consent, and often through outright intimidation or fraud. Horror stories abound: women have been lied to about the nature or permanence of the operation or threatened with the loss of welfare payments if they did not agree; Spanish-speaking women have been induced to sign English consent forms and so on. If poor women cannot get abortions, they will be all the more vulnerable to this sort of pressure, and many women may feel compelled, for economic reasons, to resort to this irreversible alternative (which will still be financed by the state).
The Supreme Court's casuistic distinction between forbidding abortions and making them unavailable moved dissenting justices to quote, "let them eat cake," and Anatole France's observation that "the law, in its majestic equality, forbids both the rich and the poor to sleep under bridges." The allusions apply equally well to Jimmy Carter's bland defense of the Court's reasoning: "Well, as you know there are many things in life that are not fair, that wealthy people can afford and poor people can't. But I don't believe that the federal government should take action to try to make these opportunities exactly equal, particularly when there is a moral factor involved." Yet this is no routine case of class bias; the Court's argument and Carter's response are not only chilling but thoroughly disingenuous. The purpose of the Medicaid abortion ban is not to reduce aid to the poor – on the contrary, abortion is far less costly than childbirth, let alone welfare for an indigent mother and her child – but to prevent abortions. Poor women are only the most convenient immediate victims of an attack aimed at women in general. But by posing the issue in terms of rich against poor, the government can exploit antipoor, antiblack, antiwelfare sentiment while lulling middleclass women into believing their own abortion rights are safe; the result is to confuse and divide the proabortion majority.
Thurgood Marshall's dissent goes straight to the point: "Since efforts to overturn [the Court's 1973] decisions have been unsuccessful, the opponents of abortion have attempted every imaginable means to circumvent the Constitution and impose their moral choices upon the rest of society . . . I fear that the Court's decisions will be an invitation to public officials to approve more such restrictions." Another dissenting justice, William Brennan, points out that in a number of previous cases the Court explicitly rejected the notion that the state may do anything short of direct prohibition to inhibit the exercise of a constitutional right. That the June 20th decisions are no more and no less than a political capitulation to the antiabortion movement is clear from the Court's assertion that states are not obliged to "undercut" their "unquestionably strong and legitimate interest in encouraging [i.e., coercing] normal childbirth." Carter's statement is even less subtle; what it amounts to is: abortion is immoral. At the moment I can't find an excuse to impose this view on the wealthy (life is unfair). But at least I can impose it on the poor.
The antiabortionists would be delighted to even things up. In August, Archbishop Joseph L. Bernardin, president of the National Conference of Catholic Bishops, called for an intensified drive to eliminate "the evil practice" of abortion. (He also denounced federally financed birth-control programs as "unacceptable governmental intrusion into family life.") So far, the campaign for a constitutional amendment banning abortion has failed in Congress. But eleven state legislatures (out of thirty-four needed) have voted to call for a constitutional convention to pass an antiabortion amendment. If the campaign succeeds, women will be far worse off than they were in 1969. Reproductive slavery will be enshrined as a basic principle of our legal system. It can happen here.
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