We Have to Talk.

Certain assumptions are generally made about the political opposition to reproductive rights. It is assumed that the debate is solely about the morality of abortion. It is assumed that regulations dictating clinic standards, informed consent and procedural requirements are based on empirical evidence. It is assumed that despite the debate, every woman in the United States can still access contraception, safe, affordable family planning and medical care. We take these notions for granted. We get caught up in debates and semantics and in doing so we have been blinded to what is happening in our own backyards.

In 1965, Griswold v. Connecticut held that laws prohibiting contraceptives were a Constitutional violation of marital privacy. In 1971, Roe v. Wade held that a woman has a Constitutional right to obtain a medical abortion. The law evolved, recognizing a woman’s right to privacy, to make these most intimate decisions a matter solely between herself and her doctor. And it seemed poised to stay that way. After efforts to overturn the new precedent failed, many took for granted the notion that these rights were interminable.

Opponents of reproductive rights have however gradually chipped away at their foundations with a series of state and federal laws. And now, more than forty years later, those rights are precariously close to crumbling.

There was of course opposition- many do hold sincere religious beliefs concerning the nature and meaning of life and how it relates to reproductive decisions. There should be no fight to demean those beliefs, or to force others to change them. But these beliefs, no matter how deeply held, cannot be forced upon those who do not share them. And these convictions have sadly been co-opted by something more insidious, a movement that is corroding women’s reproductive rights. And that movement, purportedly based in the sanctity of life, is hurting American women. It is killing American women.

We have receded into echo chambers, talking to others who share our views. We talk about liberty. We talk about choice. We allow ourselves to be painted as the opposition to life. In doing so, we change no minds.

For years we have lost ground and it has been American women and families who have suffered for it.

In many states, pharmacists can refuse to provide women with contraception. In much of America, clinics capable of performing abortions are few and far between. Onerous regulations have caused many clinics to shut their doors. Women are forced to travel, often at great expense. They may be compelled to submit to counseling to convince them not to proceed with an abortion. Doctors are required to read or distribute medical “facts” about abortion that are either misleading or outright falsehoods. Abortions may be limited in the second trimester. And should a woman be able to overcome these hurdles, there is still the matter of payment. The use of public insurance is forbidden. The use of private insurance has become increasingly limited. And by many, this is celebrated as a victory for “life.”

And in the struggles past and the battles to come, we fight for those women. But we need to change the conversation. We need to talk about what they are going through. We need to talk about them.

We need to talk about Carrie Buck.

For generations of law students, she was the “imbecile” of note in Buck v. Bell- the Supreme Court’s brief and stunningly patronizing decision declaring forced sterilization Constitutional. With little legal analysis and few references to the facts of the case, eight justices quickly decided that the Commonwealth of Virginia was fully empowered to sterilize the “feebleminded” teenager. Moreover, the Court reasoned, its cause was a righteous one. “Three generations of imbeciles is enough.”

The Court didn’t talk about Carrie Buck. The child of an impoverished single mother, deemed feebleminded herself, taken as a foster child by a charitable family who charitably made her leave school and work as an unpaid domestic servant. A child whose designation was the result of “promiscuity” associated with being raped and impregnated by a relative of her foster family. Carrie was deemed feebleminded based on their testimony, ridding them of Carrie and protecting her rapist.

But Carrie wasn’t an imbecile. She wasn’t feebleminded and she wasn’t a fool. She became the test case for a popular cause of the era- the pseudoscience of eugenics. This belief pervaded every crevice of American civic life. It influenced politicians. It justified the creation of the Johnson-Reed Immigration Act of 1924, severely limiting the immigration of Italians and Eastern European Jews, genetically predisposed, according to eugenicists, to be feebleminded. It inspired clergy who preached eugenics to incorporate its tenets into scripture. And it led one of the most brilliant legal minds in American history to brusquely order the sterilization of a young girl.

The cultural embrace of eugenics and today’s war on reproductive rights seem polar opposites, but they are in fact one and the same.

They are both born of the fear of a changing America. The panic that America is being diluted, losing its historical character. And once more, that paranoia has crept into our politics, our government and even our clergy. And once more, it threatens the same people- immigrants, the poor, and women. And it has to start with talking about Carrie.

We need to talk about Rosie Jimenez.

Rosie Jimenez was a bright, talented and capable woman. She was a college student, six months away from completing her education and becoming a teacher. And in 1977, the 27 year old single mother of a five year old child learned that she was pregnant and became the first documented fatality in the war on reproductive rights.

Roe v. Wade took away the right to outright ban abortion, but it gave rise to a rather determined constituency of people dedicated to eroding and ultimately dismantling reproductive rights. Their first victory was the Hyde Amendment. Passed in 1976, the Hyde Amendment prevented any federal funding from being used to obtain or provide an abortion.

The Hyde Amendment did not affect all women, but it quickly impacted some of the most vulnerable.

It did not touch the woman with private insurance who could walk quietly into the office of her private physician. It struck the woman who relied on Medicaid, the woman who walked past a line of picketers on the way to a clinic. The women who were most visible and the easiest to disdain, became the easiest to control. Women like Rosie.

Rosie had a Medicaid card and a $700 scholarship check in her wallet that would help her attain her dream. It was a mere two months after the Hyde Amendment went into effect when she was told that that Medicaid card could no longer provide her the care that she needed. The young mother was desperate to finish her education, to provide for herself and her child- something she could not do with another pregnancy. Out of options, she crossed the border into Mexico and obtained an illegal, unsafe abortion.

Days later Rosie was dead. The “culture of life” caused the death of a 27 year old woman and made a five year old child an orphan.

And so Rosie Jimenez became the first casualty of the modern war on women. She would not be the last. And in recent years, regulating tax funded Medicaid ceased to be sufficient. Anti-choice advocates have now targeted private insurance as well. According to the National Women’s Law Center, twenty-six states prohibit insurance plans offered on Affordable Health Care insurance exchanges from offering coverage for abortion. Eleven states prohibit private insurance companies from including abortion in comprehensive insurance policies, and while most of these states have some limited exception, the most extreme provide no such exception. Not even in the case of rape, incest or medical necessity.

The fact remains that many women cannot simply pay for these medical procedures, thus these laws in effect prevent women from obtaining medical care.

One such bill has just been passed in Texas. Another just passed in the Wisconsin State Assembly. And we must be the constant voice that reminds the nation of what happens when women cannot obtain medical care safely. So we need to talk about Rosie.

We need to talk about Danielle Deaver.

Danielle never wanted an abortion. In fact, the young mother and wife wanted a second child. Hers was a wanted pregnancy. But at 22 weeks, her amniotic sac perforated, causing the fluid to drain. Doctors told Danielle that the fetus was in grave danger, that its lungs would not develop past that point and that ultimately there was very little chance that she would deliver the healthy child she so badly wanted and that there was nothing they could do. Danielle and her husband asked the doctors to induce labor and let nature take its course. The doctors expressed their sympathy but answered that they simply could not help. The law forbade them from doing so.

Nebraska had, just months before, enacted a ban on abortions past 20 weeks, and as her pregnancy was non-viable, inducing labor would be tantamount to an abortion under Nebraska law. To help this young family would have placed these doctors in peril of a felony conviction and the loss of their license. And though Danielle grew ill, her life was not in immediate danger as defined by the new law. So Danielle grew sicker. Her husband grew more fearful each day that he would lose the love of his life, the mother of his young child.

And 10 days later, at 23 weeks, Danielle gave birth. She held the infant, scarcely over one pound, and watched her gasp for breath and die in her arms. This was the cost of Nebraska’s “Pain Capable Unborn Child Protection Act.”

And faced with the horror felt by a very much pain-capable American family, the law’s champions were satisfied that the law had served its purpose. And states continue to pass such legislation. And they never stopped to talk about Danielle.

We need to talk about Jennie Linn McCormack.

Jennie Linn McCormack is a single mother in southeastern Idaho. The mother of three was surviving on her income from part-time work, child support and state assistance when she learned that she had become pregnant once more in 2011. McCormack researched her options, but soon learned that they were few. Her home state of Idaho was notoriously hostile towards abortion, and none of the state’s 3 abortion clinics were within her reach. The nearest option was Salt Lake City, Utah, which would cost McCormack thousands of dollars she simply could not afford. With clinical care out of her reach, she ordered RU-486 from an online pharmacy. Without medical care, the young mother had no way of knowing how far along her pregnancy was or how dangerous the high dose she would take would be to her, but like so many women, she found that the alternatives had been taken from her. And so McCormack aborted her pregnancy. She would later confide in a friend. That friend would tell his sister, who would call the police.

Jennie was surprised when the police came to her door and began to ask her intensely personal questions. She was more surprised when she was arrested and charged with performing an unlawful abortion.

The young mother lost her job and had been publicly shamed in her community by the time a judge dismissed the charges against her. And that fight led to a federal court striking Idaho’s abortion laws.

These laws, such as those previously regulating abortion providers in Idaho, have the sole intent of preventing women from obtaining a safe, legal medical abortion, but after Roe, that rationale will not survive constitutional scrutiny. And so, these anti-abortion measure were redrawn as something else. These rules, these restrictions, could exist, but only if they did not create an undue burden to a woman seeking an abortion. If not for the express purpose of subverting a woman’s right to obtain an abortion, the state would need another reason, another interest to justify the restriction. And so, these laws, mandating counseling sessions to discourage abortion, waiting periods, and forcing doctors to present their patients with misleading and outright false information were reshaped as laws to address the state’s interest in protecting women.

The idea of regulating abortion as the state’s interest in protecting a woman has been expanded to justifying other restrictions. In Gonzales v. Carhart, Justice Kennedy wrote for the Court in upholding a law prohibiting abortion after 20 weeks, stating that although there was “no reliable data to measure the phenomenon,” the state had a compelling interest in curbing abortion because women could suffer “severe depression…loss of esteem…regret.” In this unbelievably patronizing decision, the Court decided that without any evidence whatsoever, they could conclude that the law should be an arbiter of what is best for women.

He decided that the law could take away a woman’s autonomy because they were doing it for her own good.

This farcical crusade to protect the interests of women is laid bare by Jennie Lin McCormack. A safe, medical abortion was taken from her grasp. It was the state of Idaho that put her in peril. The laws said to exist to protect her were used to hurt her and it was Jennie who was punished for that. And more disturbingly, Jennie was not the last woman to be prosecuted for a self induced abortion.

In 2013, Jurvi Patel was arrested on charges of feticide and neglect in Indiana and upon conviction was sentenced to twenty years in prison for using pills to self induce an abortion. The feticide conviction was overturned in 2015 after an appellate court ruled that the law had never intended to punish women. The conviction for neglect however, was upheld.

That same year in Georgia, Kenlissa Jones was arrested and charged with murder for a self induced abortion. After the murder charge was ultimately dismissed, Genevieve Wilson, director of Georgia Right to Life commented “I have been involved in the pro-life movement for well over 20 years, and I’m not aware of a situation like this ever,” despite the well publicized cases of Jennie Linn McCormack and Jurvi Patel. And the desire to punish women has not receded in the anti-abortion movement. Newly converted then-candidate Donald Trump himself was quick to admit that should efforts to overturn Roe v. Wade succeed, “there has to be some form of punishment” for women who obtain an abortion, only to disavow the suggestion days later. We cannot ignore recent history so easily. We cannot forget the women who have been deprived of access to a safe, medical abortion and then found themselves jailed for self-inducing. We cannot forget the promise that there will be more such women if this trend continues and so we have to talk about Jennie.

We need to talk about Kate-Maddona Hindes.

Kate was 26 when she was diagnosed with cervical cancer. The young mother battled cancer repeatedly and survived, but upon learning that she would need a hysterectomy she faced the tragic reality that she would not be able to have more children. Kate turned to Planned Parenthood.

Though much maligned by Anti-Choice advocates for performing abortions for women in need, abortion services account for only 3% of Planned Parenthood’s services. The vast majority is spent treating women for illnesses, reproductive care, and screening women for cancer. Planned Parenthood is saving lives. They saved Kate; they helped her maintain a pregnancy and give birth to a healthy child. They saved Carol Corbin, then a 19 year old girl, who learned that she had stage three ovarian cancer. Today, Carol is a survivor in her 60s telling the story of how treatment at Planned Parenthood saved her life. Planned Parenthood has consistently been a place where all women can seek treatment and help without judgment. It is hard to see why adversaries would seek to “defund” Planned Parenthood in the name of life.

Approximately 40% of Planned Parenthood’s funding is from the federal government; of these funds, 75% is from Medicaid payments with the remainder coming from Title X grants for low income women. The Hyde Amendment ensures that with limited exception, these funds are not being used to finance abortion services. These funds are being used to provide essential medical care to the women who need it most- and should Anti-Choice legislators succeed in defunding Planned Parenthood, they will endanger the lives of an estimated 900,000 American women. We need to talk about those 900,000 women. We need to talk about Kate and Carol and all of the women whose lives would be imperiled by making Planned Parenthood in the war on reproductive rights.

We have to talk about what is really happening. The battle for reproductive rights did not begin with Jane Roe. It did not begin with Carrie Buck. It was born of the idea that a woman’s decision of whether and when to have children was simply too big for a woman to decide for herself.

Were the concern truly for the sanctity of life, abortion opponents would not be so eager to deplete Medicaid, which covers nearly 50% of births in the United States. Were these legislators concerned about protecting women’s health, they would be swayed by empirical evidence that suggests that greater abortion restrictions result in poorer health for women. Were the concern about reducing the demand for abortion, legislators would not be so hostile to making contraception available to women when evidence suggests that education and contraception reduce the frequency of abortion. No law, no politician, and no entity can claim to be “pro-life” when the effect of their victories is to denigrate, jail, injure and kill women. Genuine pro-life Americans do not want this. This is not what they signed up for. This is a movement desperate for something else, something that overshadows the honest, moral convictions of many Americans.

And in the increasingly ugly debate about women and their reproductive autonomy, we need only listen to the words of those who wish to control women and their reproductive destinies. Representative Scott Allen of Wisconsin recently suggested that women should be compelled to give birth to children to provide for a future workforce. We need only listen to Rush Limbaugh suggesting that mass shootings are caused by feminism, and working women sending their children to daycare.

We need only remember that a brilliant American jurist was once willing, if not eager, to order the forcible sterilization of Carrie Buck because he believed that the rule of law was better suited to making decisions about her body and her future than she was. That belief is alive and well today. And it is just as insidious and just as wrong as it was in 1927. The laws and the institutions that were supposed to protect Carrie did her a terrible injustice. And Buck v. Bell is still good law, relied upon even as recently as 2001.

These same laws, these institutions, failed Rosie. They failed Danielle. They failed Jennie. They continue to fail the women who need them the most. But we cannot. So we have to talk.
 

 


We Have to Talk.
By Jill Fertel