The Limitations of "Privacy"
In tension with the racism and patriarchal familialism embedded in American political culture is the deep-rooted belief in "individual choice" and "privacy" in intimate personal matters—a belief that cuts across the political spectrum. Likewise, the sphere of privacy in American constitutional law has come to be associated by liberals and conservatives alike with matters of procreation, childrearing, and sexuality.37 While a critique of privacy as the operative core of feminist approaches to reproductive rights was always a focus of this book, that critique has taken on particular importance now. In a period of deepening neoconservatism, many progressive-minded people feel caught between a need to defend the rights of privacy as they fall systematically under attack and a need to move beyond their theoretical and political limitations.
As one would expect, those who support the right to abortion in opinion polls do so in language that emphasizes personal privacy and individual freedom. They say: "I consider it an issue of personal freedom. . . government doesn’t have a right to take that decision away from the woman"; "the government interferes too much"; "a woman’s body is her own business and she knows what’s right for herself; it’s a private thing."38 Yet some of those who oppose women’s right to abortion, when asked questions that put the emphasis on personal privacy versus government intrusion, respond in the same way as those who support it. For example, only 51 percent of self-identified conservatives in the 1987 Hickman-Maslin survey said they would oppose a constitutional ban on abortions, while 70 percent said they think it should be a private issue. Similarly, 60 percent of Catholics would oppose a constitutional ban, but 80 percent say abortion should be a private matter. How should we understand this seeming disparity? What does it reflect about the ambiguous meanings of liberal privacy in American politics and law?
On the one hand, affirmations of abortion as "an issue of personal freedom," statements that "women are people too" and that "a woman’s body is her own business and she knows what’s right for it," are encouraging from a feminist perspective insofar as they signal respect for women as moral agents and women’s authority to negotiate sexual and reproductive decisions. The values these statements express seem crucially important, for instance, in defending women against spousal and putative father consent suits, which U. S. courts have so far rejected; or in defending homosexuals and lesbians against the enforcement of sodomy statutes allowing the state to enter their bedrooms and censor how they choose to have sex—which a narrow Supreme Court majority has viciously upheld.39
At the same time, the notion of abortion as a private issue that should exclude government involvement appeals to such a broad spectrum of people precisely because, as part of the U. S. libertarian tradition, it wears a distinctly conservative face. The fact that the Supreme Court hesitates to implement the total recriminalization of abortion reflects the power in American political culture of this idea: one should be left alone in decisions that affect one personally. This is a doctrine so embedded in popular thinking in the United States, on a strictly abstract, formal level, as to constitute a truism. Indeed, its wide acceptance, including among many conservatives, stands in interesting tension with the corporatist, state interventionist, paternalist tradition embodied in antiabortion politics. (This seemingly incongruous mix of statism and privatism, regulation and antiregulation, characterizes neoconservatism generally.) This tension came dramatically to light in a statement addressed to the 1988 Republican Party Platform Committee by Marjorie Bell Chambers, a delegate from New Mexico, and publicized in the New York Times by another woman member of the committee, Tanya Melich from New York State. Chambers moved that the language of the platform stating "that the unborn child has a fundamental right to life which cannot be infringed" be amended to omit the last four words, which she (and apparently other women members) took to mean that the fetus’s life will always take precedence over the mother’s. "’Cannot be infringed’ says to me," Chambers argued, "that men and fetuses have a right to life at all times but women lose that right when they become pregnant." Moreover,
I believe that there are circumstances when the mother should have that right [the greater right to life]; and further, I believe that the federal gov’t should not have the right to make that decision for the family. . . . [We should] deny federal bureaucrats the right to override the God-given right of the family to make its own decisions in accordance with its own religious beliefs.40
What Republican women were shrewdly, if unsuccessfully, doing here was confronting the moral interventionist conservatism of the New Right with an older libertarian tradition whose roots lie in classical, laissez-faire liberalism. It was this tradition that underlay the Supreme Court’s original "privacy" decision in Griswold v. Connecticut, holding that the state cannot interfere in a married couple’s decision to use birth control. Now that the privacy doctrine has been affixed to procreative decisions, it is difficult indeed to dislodge. Ironically, even while trying to justify the state’s effort to influence a pregnant woman to choose childbirth instead of abortion, the Justice Department under Reagan, in its brief in the Thornburgh case, felt compelled to argue its position was compatible with "freedom of choice."41 In this maneuver, it was merely following the lead of the Court itself, in Harris v. McRae, when it said that to deny public funding of abortion services "places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy."42 In his plurality opinion in Webster, Chief Justice Rehnquist follows the same line of reasoning. Citing McRae, he argues in effect that "a woman’s ability to obtain an abortion" is not impaired by a state’s prohibition on abortions in public hospitals; she is still "free" to "choose" a physician somewhere else!43 Indeed, this classical, asocial concept of liberty may be more acceptable to neoconservatives than outright prohibition, insofar as constructing barriers to poor and young women’s practical access to abortion can be achieved within a framework of legality and the private market.
After seventeen years of legal abortion in the United States, feminists have learned that mere legality, even a constitutional right framed in terms of individual privacy, is perfectly compatible with a wide range of constraints on abortion access, particularly for poor women, rural women, women of color, and young teenagers. Legality assures women neither material means nor moral support and political legitimation in their abortion decisions. It certainly does not guarantee funding, conveniently located services and doctors and hospitals willing to provide them, protection from harassment and intimidation at the clinic door, or a uniform standard of good treatment once inside. Through a series of bureaucratic and administrative tactics and an official rhetorical stance, the neoconservative state under Reagan and Bush has continued to seek restrictions on women’s abortion access. In so doing, it has attempted to accommodate antiabortion politics to the formal doctrine of liberal privacy.
State-sponsored restrictions on abortion access take a variety of forms, but they are harshest for poor women, who suffer from the cutoff of federal and state funds and a shortage of public services, and for teenage women, who in many states and localities are hindered by parental consent or notification requirements. Moving nearly full circle from its very liberal decisions in Akron (1983) and Thornburgh (1986), which struck down similar state restrictions, the Supreme Court’s plurality decision in Webster (1989) upheld all the contested provisions of a Missouri statute regulating abortion providers. The statute prohibits the use of any public employee or facility "for the purpose of performing or assisting an abortion not necessary to save the life of the mother"; prohibits the use of public funds to reimburse abortion counseling; and requires that all doctors providing abortions conduct "viability tests" on any fetus believed to be of twenty weeks’ gestation or more.44 In cases pending in the Court’s fall 1989 term, it is expected that it will give further approval to state requirements of parental notification before minors may obtain abortions.45
Such restraints on "a woman’s right to decide" amount to a systematic policy of intimidation that reinforces the built-in restraints of the U. S. health care system. Since no doctor or facility is required to provide abortions in a market-dominated medical economy, they are in fact unavailable in many locales. Eighty-two percent of U. S. counties, particularly in rural areas, are without any abortion providers at all. Well before the Webster decision, public hospitals, upon which most poor and rural women rely for their health care, increasingly refused to provide abortion services, providing only 13 percent of all induced abortions in 1985.46 To whatever extent such policies affect the actual numbers of women getting abortions, they frame the meanings of abortion as an individual and social experience.
This picture confirms another piece of the argument in Abortion and Woman’s Choice: that the struggle to achieve women’s reproductive freedom cannot succeed in the long run if conducted as a civil liberties struggle for individual privacy. At bottom it is a deeply cultural and social conflict for which formal legality provides at best a thin protective cover. In other words, "minimizing government involvement" can also mean indifference, or outright opposition, to positive state interventions to fund or secure access to services. What is lost in the language of liberal privacy is the concept of social rights, familiar in most European social democracies: that the society has a responsibility to ameliorate the conditions that make either abortion or childbearing a hard, painful choice for some women; and that the bearers of this right are not so much isolated individuals as they are members of social groups with distinct needs.
If we go back to the public opinion survey commissioned by NARAL in 1987, it seems extremely important for the future of abortion politics in the United States that hardly any of the respondents in any segment of the population saw abortion as a particularly pressing issue. We might usefully relate that finding to the absence—the dead silence—of a "social rights" perspective in abortion discourse. People view abortion in isolation from other political, social, and economic issues. They do not connect abortion to, for example, the ideological manipulation of concern over budget deficits to rationalize the meanest social service cuts affecting poor families;47 or to AIDS, which may make abortion access more critical than ever before for poor women—or, conversely, may make them more vulnerable to involuntary abortions or sterilization; or, above all, to the existing level and quality of health care funding and services.
This brings me to a final point that Abortion and Woman’s Choice stresses: If abortion in American society is a highly divisive issue, its underpinnings are the much more deeply divisive matters of gender, race, and class. That is why a feminist politics of reproductive rights cannot rest solely on the notion of privacy. The real paradox—and tragedy—of the past seventeen years of legal abortion is not that although the majority of people believes in "individual choice," politicians and judges do not listen. Rather, it is that the majority believes in "individual choice"—the language of privacy—but fails to connect this belief to the social changes and affirmative public efforts needed to make such choice real for all women. A full reproductive rights agenda must involve access, not only to abortion services and funds, but to adequate prenatal care, maternal, infant, and child health services, child care, housing, sex education without stigma, drug treatment—and, of course, universal health insurance. While antiabortionists clamor for the rights of fetuses and embryos, we live in a society in which one-fifth of all children, over one-fourth of all black children, and one-third of all poor children have no health coverage at all.48 As Gloria Joseph wrote in 1981, "given these realities of health care [as] seen by Black people, white women must understand why Black women do not devote their full energies to the abortion issue. The emphasis has to be on total health care."49 Until privacy or autonomy is redefined in reference to the social justice provisions that can give it substance for the poorest women, it will remain not only a class-biased and racist concept but an antifeminist one, insofar as it is premised on a denial of social responsibility to improve the conditions of women as a whole.
Feminists in the United States have not yet succeeded in communicating an alternative vision of women’s liberty, or their "personal/bodily integrity," that moves beyond traditional liberal concepts of the private self. Such a vision requires a critical deconstruction of the class, race, and gender meanings that imbue current abortion discourse; a concept of "per – sonhood," or individuality, that is socially referential; and a broadly defined agenda of social rights, particularly in regard to health care. Those ingredients will not emerge from within the framework of the constitutional law but only through an organized political movement based on a broader array of forces than feminism has yet known.
Happily, such a movement is beginning to emerge under the vocal leadership of black feminists active in the reproductive rights struggle. In the years since Abortion and Woman’s Choice first appeared, at least three national meetings on "Women of Color and Reproductive Rights" have been held. The founder and director of the National Black Women’s Health Project, Billye Avery, has denounced the "conspiracy of silence" surrounding the critical reliance of black women and poor women generally on safe, legal, funded abortion as part of their overall health care needs. A group of sixteen distinguished African-American women politicians, civic leaders, journalists, and leaders in reproductive health have issued a public statement proclaiming, "African American Women are for Reproductive Freedom: We Rememberand condemning the "so-called pro-life movement" as racist and anti-life/anti-health. Perhaps the most besieged clinic in the country is the Atlanta Feminist Women’s Health Center, whose Community Education Director is Dazon Dixon, a black woman. Dixon tells a story about a young black client trying to maneuver through "Operation Rescue" pickets and television cameras so she could enter the clinic for an abortion:
. . . when a young looking, blonde and blue-eyed white man screamed charges at her that the Rev. Martin Luther King, Jr. would "turn over in his grave for what she is doing" and that she was contributing to the genocide of African-Americans, she broke. She stopped, stared him in his eyes with tears in hers, then quietly and coolly said, "You’re a white boy, and you don’t give a damn about me, who I am or what I do. And you even know less about Martin Luther King or being Black. What you have to say to me means nothin’, not a damn thing." He was silenced and she walked on.50
That young woman’s voice foretells the future, not only of abortion politics, but of feminism in America.