Wednesday, October 29, 2008

Beyond Privacy, Toward Equality

Beyond Privacy, Toward Equality

By Priscilla Huang

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If you have taken public transportation in New York City lately, you have probably seen the ads that say "Abortion Changes You [1]" and "Women Deserve Better [2]." As a reproductive justice advocate, I instantly recoil at the taglines. These campaigns are the latest attempts by the anti-choice movement to advance a "pro-woman, pro-life" message - a message that insinuates that abortion is something always regretted and always something to be avoided at any cost. Feminists for Life goes so far as to declare that "abortion is a reflection that our society has failed to meet the needs of women" and that women are "driven to abortion." It is the same paternalistic attitude that I found so outrageous in Justice Anthony Kennedy's opinion in Carhart [3].

It seems clear that these "pro-woman, pro-life" campaigns have usurped images and ideas that were once in the domain of the reproductive rights and justice movements. Young women of color are featured in both campaigns, and it takes only a small leap of my imagination to change the taglines to "Immigrants Deserve Better" or "Affirmative Action Changes You." Though the tactics have shifted from fringe pictorials of the macabre to poignant woman-centric portraits, the goal remains the same: eliminate a woman's right to choose an abortion. Unlike the campaigns of the past however, the more recent anti-choice ads also function to chip away at the underpinning of our reproductive rights law by giving the state a new interest in "protecting" women from abortion.

The Supreme Court declared in Roe v. Wade [4] that the right to privacy under the Due Process Clause of the 14th Amendment was "broad enough to encompass a woman's decision whether or not to terminate her pregnancy." But the Court did not declare the right to privacy to be an absolute right, and said that a woman's privacy right "must be considered against important state interests in regulation." Thus, Roehas become vulnerable to anti-choice arguments that are based on the belief that the state should regulate women's decisions about abortion because the state knows what is good for women. Instead of advancing notions of gender equality over the years, our reproductive rights jurisprudence has become increasingly paternalistic.

Would this have happened if the Justices had decided Roe v. Wade on equal protection grounds instead? I think not.

The Declaration of Independence [5] proclaims that, "all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness." Yet the ideal of equal rights for all individuals was contradicted by the existence of slavery and the denial of rights to some people because of their race or gender. In fact, the word "equality," did not appear in the Constitution until passage of the three Reconstruction-Era amendments: the 13th, 14th and 15th Amendments. The 14th Amendment [6] in particular declares that no state may deny "to any person within its jurisdiction the equal protection of the laws." Federal courts have also applied equal protection limitations to the federal government through their interpretation of the due process clause of the 5th Amendment. In short, the equal protection clause ensures that neither federal nor state governments may classify people in ways that violate their liberties or rights under the U.S. Constitution.

What is significant to me about the 14th Amendment equal protection clause is that it applies to "any person" (emphasis mine). The text does not specify "man," "woman," or "citizen" is subject to the equal protection of the laws. Applied to the reproductive rights context, this means that advancing reproductive rights and justice is fundamentally about achieving equality for all people. We cannot subordinate one group's struggle over another. Had Roe v. Wade been decided on equal protection grounds, our fight for reproductive rights would extend beyond stopping government intrusion. It would be focused on dismantling all barriers to access and ensuring that all individuals are entitled to meaningful access to health care.

The ideal of equality forces us to think beyond the individual and to carefully consider how inequality can impact a group's ability to thrive based on a number of variables including race, class, gender identity and citizenship status. Hence, we cannot look at issues in isolation or through a singular classification. It is for this reason that many reproductive justice advocates are also involved in the struggle for comprehensive immigration reform [7], prison abolition [8] and health care reform [9]. In all of these movements, men and women are making demands on the government for better protections and conditions for those who are most impacted by inequality.

Principles of equality also encourage us to look long-term and dream about the type of country we want. Perhaps it would have helped us avoid repeat ballot initiatives like California's Prop 4 [10] and the South Dakota's Measure 11 [11], where short-sighted approaches for fending off the initiatives resulted in the opposition tightening their strategies and more effectively honing their messages.

Making the government responsible for securing equal protection is not a paternalistic function. Rather, it would reframe reproductive rights as fundamental to achieving gender equality, and would pave the way to developing a doctrine of affirmative rights that can be integrated with human rights. As Election Day draws near, let's vote for a government that goes beyond keeping laws off our bodies. Instead, let's vote for a government that can create laws to keep our bodies and communities safe and healthy.

1 comment:

Michaelene said...

The Abortion Changes You outreach is meant to be a safe place set aside from labels, politics and debate. A place where men and women can come as they are anonymously, while still experiencing community through the knowledge that they aren't alone. The Web site and the book Changed specifically focus on men and women who are experiencing troubling emotions after an abortion - either their own abortion or the abortion of someone close to them.

Of course not all men and women will experience troubling emotions. In fact, men and women have a variety of reactions after an abortion ranging from relief to paralyzing guilt and grief. Many individuals also experience conflicted emotions that are both positive and negative.

As can be imagined, the men and women that visit will most likely do so because they are experiencing difficulty after an abortion. Although most of the personal stories that have been submitted to the site express painful emotions and deep regret, there are others that paint a different picture.

For example, on the Explore page of the Web site one woman shares:

I went through a stage after dealing with the abortion where I just wanted to have a baby (and be in a stable relationship). Prior to being pregnant I vowed NEVER to have children and really didn’t ever want any. After the abortion it was the total opposite. All I thought about was meeting a great guy, getting married, and having kids! It has finally ceased. I am back to my old self and am not planning on having children any time soon! I just wish my boyfriend could find a better way to deal with this issue.

Note: I was pro-choice before having the abortion, I never thought I would have to use it. After the abortion I am still pro-choice, but I will never use that choice again.

Another woman shares:

I had an abortion and I do not regret it at all. It freed me to live my life, and to avoid a life of poverty and struggle. I was not ready to have a child, nor do I feel that it was wrong for me not to subject myself to the experience of childbirth and adoption.

While yet another woman shared this after reading the subway placard:

Now that it’s at least three weeks after the procedure I feel depressed and alone. Even my fiancĂ© can’t control my mood swings and depression. Sometimes I feel like committing suicide in order to release the soul that was once in me. I feel like I don't deserve to live anymore. I’m 24, confused and alone. I hate myself for what I've done, I felt like I was the only one suffering until I found this website on the train.

In a culture that often ignores the real men and women that experience abortion, Abortion Changes You seeks to provide a safe place devoid of the labels and rhetoric.