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Abortion and Privacy

The loss of the Roe right to abortion will begin to unravel a whole skein of privacy rights. A radical solution would be to pass the Equal Rights Amendment to ensure access to the full spectrum of childrearing and reproductive rights.

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As Justice Ginsberg once argued, privacy is a poor substitute for gender equality. The leak of Justice Alito’s draft decision reveals the radical willingness of the majority of the Supreme Court to repudiate any right to privacy as being implied in the US Constitution. Because the United States relies on the constitutional right to privacy rather than women’s equal rights for the rights to contraception, abortion, interracial and same-gender marriages, the Supreme Court decision will potentially erase decades of gains in sexual and reproductive self-determination. The current crisis of reproductive freedom provoked by this leaked draft might be best understood as the final blow to a set of fundamental rights built upon a shaky foundation. That’s because privacy in the United States, in practice, has only been a right afforded to some.

Comparing Germany and the United States

Could the result have been different?  My research comparing the parallel fights for abortion rights in Germany and the US beginning in the 1960s shows the importance of both the legal reasoning used by the Courts and the discourses used by activists. In Shaping Abortion Discoursemy co-authors and I showed that differences in the ideas that drove the fervent debates over abortion in Germany and the US were striking. In the US, the legal right to abortion became an individual freedom, where in Germany abortion legalization provided a right of access across class and geographic lines. In both countries, the constitutional court set the parameters of reform and grassroots feminist movements were at the leading edge of demands for women’s autonomy in reproductive matters.

German claims, for and against abortion, were much more explicitly put in terms of women’s rights and economic equality. The German Constitutional Court’s decision to decriminalize abortion (even while it also demanded doctors counsel against it) was explicit in recognizing that any restrictions on the women and families who did not have the option to travel abroad or have a private physician willing to bend the rules for them would discriminate against those without economic means. The German Court insisted that the provision of abortion services be sufficient in all states and regions to ensure local access and that the government pay for abortions for those who could not afford them. Because Lutherans—the main German Protestant denomination—accepted that women should be the ones making the moral decisions about abortion, and Catholics (whose opposition was more doctrinal) were in a minority, the Catholic Church’s ability to impose its position – while considerable – was ultimately not successful. Instead, the post-Holocaust commitment to preserve human life explicitly written into the West German constitution demanded some approach other than making abortion illegal. Their court explicitly acknowledged that illegality never did end women’s recourse to termination of “crisis pregnancies.”  What had been the practice in East Germany – legal access with social stigma – was modified in unified Germany to add “pro-life counseling” but still left the decision in women’s hands.

By contrast, in the US, the Court invoked a right to privacy for family lives and medical decisions, keeping the state out of the business of regulation entirely in the first trimester. This privacy-based decision tended to redirect feminist attention to supporting an individual, non-gender-specified, “right to choose.” The US anti-abortion mobilization in turn focused its framing on the individual fetus as having rights, particularly a “right to life” that trumped any individual rights held by women. As a result, women were less visible and fetuses more visible in the American debate about Roe than in the German debates. This had dramatic consequences. The Hyde Amendment of 1976 had cut off federal funding for abortions for poor women and the Casey decision of 1992 preserved the formal right that Roe had granted but opened the door to the variety of state strategies to close clinics and limit practical access.

The Privilege of Privacy

Relying on a privacy-centered right to abortion in fact creates huge costs for the poor trying to exercise their rights. Instead, it highlights how little privacy people who are poor have left. Pregnant women who are poor, and often also non-white, are subjected to prosecutions for homicide already if they miscarry, a trend that already began to increase a decade ago, as the National Advocates for Pregnant Women has shown. The nature of the debates in West Germany and the US reveal how intersectional concerns about class and race are inseparable from the question of women’s freedom. Yet race and class inequalities are obscured both by invoking an abstract privacy that requires money to access and by defending an anonymous and socially isolated fetal life. The German court demanded limited but equal access, but Roe centered on the rights that white middle class women could expect the privacy of their family lives and medical decisions to protect.

Women of color always knew this was insufficient. The Black experience of mothers being framed as “welfare queens” and having their high rates of maternal and infant mortality ignored means that their mothering was suspect and privacy would offer them no protection.  The Hyde Amendment allowed Medicaid to cover sterilization even as it cut off funding for abortion, and “family caps” introduced as “welfare reform” refused to increase state benefits if the number of children rose.  SisterSong, a woman of color organization attempting to reframe the debate as a matter of reproductive justice for all women, offers an alternative human rights frame that would recognize “the human right to maintain personal bodily autonomy, have children, not have children, and parent the children we have in safe and sustainable communities.” While much discussion about the Alito draft has focused on how low-income, rural women, and women of color will suffer if the ultimate decision overturns Roe, this discourse often fails to recognize how less-privileged pregnant people for decades already faced steadily worsening access to abortion. The individualization of privacy as a constitutional right cares not a whit about the actual consequences of state action and inaction on women’s concrete reproductive situations.

The US now has 50 years of experience with its use of privacy as a constitutional claim to protect reproduction. It has never been sufficient to ensure women safe and autonomous decision-making, but the loss of even this limited right will begin to unravel a whole skein of privacy rights on which families and physicians have long relied in practice. If even this thin right to privacy is not recognized as a constitutional protection for women, families, and the medical practitioners they rely on, then there is little hope for securing reproductive justice, even for the middle-class white women who assumed it had been won. The uproar over Roe has once again raised the demand for a constitutional right to gender equality in the US. In the 1970s, US feminists valiantly fought for an Equal Rights Amendment, and attempted to mollify critics by arguing that this guarantee would not be relevant to abortion law. It failed anyway. A perhaps implausible, but radical, solution would be to pass the Equal Rights Amendment and wield it to ensure access to the full spectrum of childrearing and reproductive rights.

Myra Marx Ferree is the Alice H. Cook Professor of Sociology Emerita at University of Wisconsin. She currently is co-directing the Inclusion and Exclusion group at the Minda da Gunzburg Center for European Studies at Harvard

The Gender Policy Report is a non-partisan, multidisciplinary effort to produce and disseminate timely, gender-focused analyses of emerging U.S. federal policy proposals and developments.

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