|Patricia Ireland:||Welcome to all of you. We are particularly pleased to have with us two scholars. One is Eileen McDonagh, a visiting scholar at the Murray Research Center at Radcliffe College and an Associate Professor of Political Science at Northeastern University. She is here today to talk with us about her new book, Breaking the Abortion Deadlock, From Choice to Consent. With her is Dorothy Roberts who is a Professor at Rutgers University School of Law, Newark. Professor Roberts teaches criminal law, family and civil liberties. She is a graduate of Harvard University Law School and has been a Fellow at the Institute for Ethics and the Professions at the Kennedy School of Government. Professor Roberts is a frequent lecturer who also has a book coming out. And the title of your book will be?|
|Dorothy Roberts:||Well, the tentative title is Race, Reproduction and the Meaning of Liberty. I am also thinking of Liberating the Black Woman as the title.|
|Patricia Ireland:||Well, that would certainly be, again, another provocative title to
go with Eileen's and, I guess, with my own. What
Women Want has proven to be a little provocative as well. We are
here because it is the anniversary of Roe v. Wade tomorrow, and
as Eileen's book, Breaking the Abortion Deadlock, highlights, there
does seem to be an impasse in the discussions, in the politics, and in
the law on abortion rights. Especially with regard to poor women's right
to abortion, we have seemed to reach an end point in our efforts to have
poor women's rights to abortion recognized as a constitutional right, or
even through legislation. The last Congress passed fifty-some anti-abortion
and anti-birth control bills. And after the November 1996 elections, we
have an even more anti-choice Congress. So, we are concerned with how we
break the deadlock and we want to open a dialogue starting today with people
like Eileen McDonagh and Dorothy Roberts to reinvigorate the political
and legal battle. We know that the activists are there, and often we see
the academic and the activist sides of our movement not informing each
other as well as they ought to.
So this for us is the beginning of what we hope will be a national dialogue, and it certainly will be a dialogue within the National Organization for Women, with the cutting edge legal thinkers like Dorothy Roberts and Eileen McDonagh. As we begin this dialogue, know that it is just a beginning. We are going to inform ourselves, we will work with them to set up meetings with editorial boards, with reporters and others in our own movement who can help reconceptualize these issues in a way that will not leave behind young women, poor women, and women who work for the government. As we have seen military women and peace corp and other women cut-off from access to abortions, it is a particularly important time for us to make this breakthrough. So we have gathered our staff, and we are pleased that you all were able to be with us today.
Some of the staff members organize in the field, some organize our communications and others promote our public policy through the NOW Foundation. Some of us travel around the country and look forward to helping to share your ideas as we do our public speaking. So, I am going to ask Eileen to kick it off, and I think she and Dorothy will lead the discussion. After they get their ideas out, we will open it up for questions and dialogue.
|Eileen McDonagh:||I am very happy to be here. I want to thank everyone for celebrating
the morning after in this way because this is the day before the 24th anniversary
of Roe, and I think we can all agree that Roe was the landmark
decision for its time. However, it has proved to be inadequate in some
very important areas of abortion rights. One of the most important, is
something Patricia Ireland just mentioned, which is access to abortion.
The way abortion rights are currently framed, based on the Roe
v. Wade decision, the Supreme Court has ruled there is no constitutional
right to abortion funding. There is no constitutional right to abortion
funding even if you are an indigent woman, and the particular pregnancy
you have is a medically abnormal one that could cripple you for the rest
of your life, or put you in a coma for the rest of your life.
Most likely, there is no constitutional right to abortion funding, even if you are suffering from a medically abnormal pregnancy that threatens to kill you. Currently, Congress and states do provide legislative funding for abortions when a women's life is in danger, but if that were taken away from the legislative agenda, as it could be, in the opinion of constitutional law experts, there would be no constitutional right to abortion funding, even if you were threatened with death by a medically abnormal pregnancy as abortion rights are currently framed based on the Roe v. Wade decision. So as we celebrate the importance of the Roe v. Wade decision, we also need to move beyond it. We need a new vocabulary for abortion rights. We need to rethink some of the premises underlying reproductive rights, and we are here today to talk about some of the new ways we can reframe abortion rights to provide access to abortion for all women, which is as just as important as the abstract right of choice itself.
What I would like to do is start off by saying the new vocabulary we are suggesting is that we begin to shift the discussion from what the fetus "is", which has been a dominating issue for over twenty years, to a new focus on what the fetus "does". Medically and legally, what the fetus does, is to cause pregnancy. Medically and legally, a woman becomes pregnant when a fertilized ovum implants itself in her body, in her uterus. It is, therefore, the fertilized ovum and later the fetus that both causes and maintains the condition of pregnancy in a woman's body. If we start to focus on what the fetus does, and we begin to think about even what a medically normal pregnancy involves, we see the pregnancy is a massive transformation of a woman's body. Even in a medically normal pregnancy, extraordinary changes occur. Some hormones increase four hundred times their base level. A woman's blood system is rerouted to make all of her blood available to a growing fertilized ovum. A new organ is grown in a woman's body, the placenta. A woman's respiratory system is affected. Her heart rate increases, blood volume increases sometimes forty percent normal levels. Even in a medically normal pregnancy, these are massive changes, and in an abnormal pregnancy, as we know, pregnancy can entail life crippling consequences and even death.
When massive transformations happen to anyone's body, the key issue is not just that person's choice about what to do with her or his own body, but rather, that person's right to consent to what someone or something else is doing to her or him. Just as a woman must have a right to consent, for example, to engage in sexual intercourse with a man, once we begin to look at what the fetus does to a woman when it makes her pregnant, the key issue becomes not merely her choice about what to do with her own body, but rather her right to consent to what the fertilized ovum is doing to her when it initiates and maintains pregnancy as a condition in her body. Whereas we associate sex and pregnancy together, when we begin to look at this new way of framing abortion rights, we come to realize that sexual intercourse creates the risk that a fertilized ovum will be conceived and then will make a woman pregnant, but sexual intercourse is not the same thing as pregnancy. Women do not need to engage in sexual intercourse to become pregnant. Women can become pregnant through in vitro fertilization, or through artificial insemination, which underscores or illustrates why, although sexual intercourse is usually associated with pregnancy, it is not the same thing.
So, just as we have spent many decades acquiring for woman the right to consent to sexual intercourse, we now need to direct our attention and our efforts to acquiring for women the right to consent to pregnancy. The issue here is the right to consent to the way a fertilized ovum makes a woman pregnant.
Legally, consent to determine how others will intrude upon one's body and liberty is sacrosanct. None, for example, is ever required to donate even a pint of blood to another person without consent even to kin relations. Once a child is born, no state in the country requires a parent to donate even a pint of blood to a child, even if the child's life is in danger. While morally I am sure we would all agree that a parent should donate a pint of blood, legally, the law does not require people to donate anything, even a minimally invasive part of their body, such as a pint of blood, much less bone marrow, or organs to another person. This is because the law considers consent to be an absolute requirement before one private party can have access to another's body or liberty.
As this new framing of abortion rights shows, however, currently the law allows preborn life to take from another person, a woman, in invasive ways (the entire body of another person), in the way the law does not allow a born person to take needed body parts from another person. There is an imbalance, therefore, in the way the law has privileged preborn life compared to born life. The law will allow preborn life to take over the entire body of someone, a woman, but once a person is born, no one can take even a pint of blood from a mother or father without consent. So, the reframing that is involved here is a way of demanding from the law that when women are pregnant, they have the same protections in relation to preborn life that people have in relation to born life.
This reframing achieves the goal of abortion funding by saying that the obligation of the state is to protect pregnant women from non-consensual intrusion of their bodies in the same way that the state protects other people. That opens a whole new door to a constitutional reframing of abortion rights that includes the right to abortion funding based on women's right to equal protection of the law.
|Dorothy Roberts:||Well, I think Eileen is the best person to go over her argument and
explain the details of her theory, but I thought what I would do is tell
you a little bit about why I am interested in her argument and what I think
the practical effects could be. The main reason I am interested is that
the dominant theories of reproductive rights and the right to abortion
have failed millions of women in America. The theories have failed women
of color and poor women because they completely ignore the effects of poverty,
of racism, of other social conditions on women's right to have an abortion
and to make other reproductive decisions.
The right to an abortion as currently established by the Supreme Court on the right to privacy is based on a very, very narrow view of reproductive liberty. A view that says that all we are entitled to is non-interference by the state. That right of privacy protects the individual from intrusion by the government. And, that type of right does not account for any kind of affirmative government obligation to insure the social conditions that are essential for reproductive liberty, or to protect women from private actors that may also interfere with women's liberty. And so, we end up with this idea of choice. An abstract notion of choice that does not get people very far if they do not have the resources to effectuate their choice.
For example, if you are dying of a heart condition, you may have the choice to have an operation for your heart or decide not to, but if you do not have the money to pay for it, it does not do you very much good. You are going to die anyway. And, there are a whole range of reproductive decisions. From the decision to terminate a pregnancy, the decision to have a healthy baby, to get prenatal care, to have a healthy delivery of the child, to use fertility treatments that might enable you to have a child. A whole range of reproductive decisions that you cannot actually effectuate if you do not have the resources to do them. And so, we have ended up with a theory of reproductive liberty that really privileges a small portion of our population, people who have the money and the power to fulfill their reproductive choices. Just to give you an example of how far this notion can go, let us consider Rust v. Sullivan, where the Supreme Court upheld government regulations that forbad doctors from giving information to their patients about abortion options as part of family planning services. Here we have a situation where the Supreme Court recognized that women who paid their doctors were entitled to that information, in fact, they could sue their doctors for malpractice if they did not get it, and the state affirmatively protected those women. But because women who depend on government funding did not have an affirmative right to information about abortion, the Supreme Court said it was all right to deny them information about abortion options. And so we have this division of women, privileged women, who get the information about abortion options because they are entitled to it, and poor women who can be denied such information altogether, constitutionally. Under the law.
So, what I like about Eileen's argument is that it is an effort to put poor women and wealthy women on equal footing. It is an argument that says they all deserve affirmative assistance from the state against this harm that is caused by a pregnancy to which they did not consent. All women are entitled to government assistance from the harm of nonconsensual pregnancy. It puts women on equal footing with other people who also ask for government help from harm to their integrity, to their bodily integrity, and to their liberty.
I see this "consent to pregnancy" approach to abortion rights as a step towards a new agenda for reproductive rights; a new meaning of reproductive liberty that I think we have to embrace in the new century. A more meaningful approach that does not just focus on this narrow view of the government not intruding on our decision to have an abortion, but rather one that tries to seek full meaningful reproductive liberty for all women in America. And that is what I hope this conversation will initiate.
|Patricia Ireland:||Thank you Dorothy. Thank you Eileen. I know that upon first hearing,
some of these ideas have got to have sparked some questions, and I think
that the questions may be as important a part of this forum as the presentations
of the ideas themselves. I would urge you to read Eileen's book, and when
Dorothy's book is published, to read her book as well. I know it is hard
to find time as we organize and fight in the Congress to preserve the rights
that we do have, yet at the same time, I think it could create a dramatic
leap forward if we start, at least start, the dialogue on reconceptualizing
the very foundation of abortion rights.
I want to find out if anyone from the crew that is with Tony K Films wants to start with a question? I do not know what your timing is, how long you can stay. And of course, Eleanor Clift is here, and I do not know if you want to, or if either one of you want to lead off.
|Tony K Films:||We can stay as long as it goes. We are planning to. I would like to hear other people actually.|
|Patricia Ireland:||Okay, Eleanor, do you have any questions?|
|Eleanor Clift:||How would this theory take into account the widely held feeling that the unborn child, the fetus, is innocent life that did not ask to be born? I mean this could be interpreted as kind of a hostile act against someone who does not come in with any intentions, any bad motivations.|
|Eileen McDonagh:||Well, I can understand how people feel that unborn life is innocent,
but from a legal standpoint, the fetus is not so much innocent as much
as it is mentally incompetent. Medically and legally, the fetus cannot
control itself or have a conscious intention to cause pregnancy, which
means that it innocent in the sense that it is mentally incompetent. Nevertheless,
the fetus is not innocent of actually causing a woman's body to change
from a nonpregnant to a pregnant condition by implanting itself in her
uterus, since it is this implantation that makes her pregnant.
From the stand point of the law, it is not necessary that you intend to harm in order for it to be recognized that you are causing harm. For example, some people who are born are legally viewed as being mentally incompetent because they are under the influence of drugs, or they are insane or they are mentally retarded, or for some other reason. And although mentally incompetent born people would be viewed as legally innocent of causing harm, because they do not have the ability to have intentions or control of their behavior, that does not mean they do not actually have great power to cause harm to others. So, if a born person who is incompetent were to attack you, we would all agree that such a person is innocent of any intentions of hurting you, yet such a person would still be able to hurt you a great deal, and the law would try to stop a mentally incompetent born person from hurting you, even though such a person intends no harm.
The analogy with preborn life would be similar. We could all agree that the preborn life has no intentions and no ability to control its behavior. That does not mean, however, that preborn life has no power to harm a woman. To the contrary, in the case of a medically abnormal pregnancy, the harm is caused by preborn life is obvious. And the only way to stop that harm is to remove its cause, which is the fetus. Yet, more significantly, the law recognizes that even in a medically normal pregnancy, if the woman does not consent to be pregnant, she is being seriously harmed. The legal term is "wrongful pregnancy." This term has not yet been applied to the abortion issue, but in other legal contexts, it is a well established principle. For example, when physicians fail to sterilize men or women competently and pregnancy ensues, or in cases where pregnancy is subsequent to rape or incest, even if a woman has a medically normal pregnancy, even if she has a healthy child, and even if she opts to keep the child and not put the child up for adoption, nevertheless courts all over the country recognized that she has been seriously harmed. She can sue the physician for damages, and in criminal contexts, the government punishes men more severely when pregnancy follows their imposition of nonconsensual sexual intercourse.
|Eleanor Clift:||Of course, again, you could argue on the other side. People ask you "Have you had children before the age of thirty?" because it is thought that this protects you against cancer. So, there are different ways to look at what you call the harm to a body, and you could argue that pregnancy is what the body is supposed to do. What I mean is that there are other ways to frame pregnancy. Legally, of course, it might be different.|
|Eileen McDonagh:||That is right. And the key, legally, to harm is consent. I could say to you, for example, that I know your life would be improved if you had a particular operation. I might be right. I could be a physician. I could be correct. Yet, unless you consent to the operation, legally, that operation constitutes harm to you. What is more, you would have a right to sue me, if I imposed an operation on you, even if I were correct that it was a life saving operation. So, from a legal standpoint, the most important definition of harm is not really what is happening to person, but whether that person consents to what is happening. Pregnancy could be the best thing in the world for a woman from a medical standpoint, but if a woman does not consent to pregnancy, legally pregnancy is harm. What is more, in contexts other than abortion, pregnancy already is recognized as harm if a woman does not consent to pregnancy, and, as I mentioned, the legal term for nonconsensual pregnancy is "wrongful pregnancy." So, in this project I am drawing upon established legal principles that already define normal pregnancy as serious bodily injury in other contexts and then applying those legal principles to the abortion issue.|
|Dorothy Roberts:||I think we are so used to the idea, and our culture, that women are supposed to be mothers, that women are supposed to be self-sacrificing that very often it is difficult to see the harm that unwanted pregnancy causes to women. And, what Eileen is saying, I think, is that these are harms that we do recognize can occur against other people. If, for example, a man were lying on an operating table, and the doctor was about to operate on him, we would know, instinctively almost, that he most consent to the operation. He must have consented to that invasion of his body before the doctor could go ahead. But, with pregnant women, very often doctors and others in our society believe that women should be able to endure all sorts of invasions to their body, both whether they decide to have the child or not, because of a cultural view of women, I think. Part of the task, therefore, is going to be to get people to see that women also have a right to reproductive liberty and a right to bodily integrity equal to others in society.|
|Patricia Ireland:||In some ways it reminds me very much of the changes that we began in the 1970's in conceptualizing marital rape. Up until the mid 70's, and in some cases, such as North Carolina, I guess, up until just a couple of years ago, states had not done much of anything about marital rape. That was because of the notion that intercourse between a husband and wife was accepted as normal and required for the good of the country, the good of the society. And, of course, every normal woman, every real woman would consent to sex with her husband. The whole notion, therefore, that sexual intercourse could be, in fact, if there were consent a wonderful experience, beautiful love making as opposed to a brutalizing, humiliating experience of rape, irrespective of what vows you had taken. But I do think it requires a great shift in people's concept, as you describe it, of pregnant women.|
|Kim Gandy:||Having had two children in the last four years, I can agree that there were tremendous, tremendous changes that take place. As I have been thinking about this very, very interesting idea, I wonder at what point consent can be withdrawn, and at what point consent could not be withdrawn? I think as a lawyer, that is where my mind goes with the question. Having once consented to be pregnant, can you then change your mind at some point down the line? Is consent required always, at every step in the process, or at some point do you lose the option to withdraw consent? Maybe that is the hardest question of the whole issue for me.|
|Eileen McDonagh:||I think this is really an important question. And the logic of consent would always give you the option to withdraw it. The consent we are talking about is not a contract. So even though you still probably have options for how to break a contract, we are not even talking about a contract; we are talking about consent. So, as consent, it would be something you could withdraw. However, I think the subtext of your question has to do with the policy implications of withdrawing consent. This project is energized by a policy goal of obtaining abortion funding for women. As I see it, the policy consequence of shifting to consent as a premise for abortion rights rather than just choice would mean that there would be an argument for why there is a constitutional right to abortion funding. Such a right would make it possible for women to obtain the funds to have abortions earlier in pregnancy, rather than later. Because, many times, when women who seek an abortion in early pregnancy but do not have funds to obtain one, they are then forced to continue a pregnancy. They may then become eligible for funds later in pregnancy, if that pregnancy becomes a medically abnormal one, perhaps threatening their lives, and then they end up having abortions later, rather then earlier, in pregnancy. Provision of abortion funding would reduce, rather than increase, late term abortions, therefore, and the only way I can see that women can obtain a constitutional right to abortion funding is if the framework for abortion rights shifts from merely the right of privacy to make a choice about your own life to the more fundamental right to have the assistance of the government to free you from a nonconsensual pregnancy.|
|Kim Gandy:||Late term pregnancy, of course, is more dangerous.|
|Eileen McDonagh:||Of course, it is more dangerous. And, of course, it is contrary to any policy goal that we would ever have. Clearly, if abortion is something a woman seeks, the earlier the abortion is obtained, the better. The policy consequence of shifting to consent would open the door to a constitutional right to abortion funding. This would be funding that would be available for a medically normal pregnancy in the early stages of pregnancy. The policy result would be that for women who seek an abortion they would get one right away with the funding that would be available. Such funding would reduce, therefore, the need for abortions later in pregnancy. That would be the policy consequence.|
|Patricia Ireland:||And why does it imply a right to funding? Because it sounds as if you were arguing that it would imply a right to funding for all women, not just indigent women, and that it would be for medically normal pregnancies as well as abnormal pregnancies.|
|Kim Gandy:||It would be based on the principle that the police would protect you from assault if someone were assaulting you. In other words, if a police officer is standing there, that officer would be obligated to intervene, even if you had the money to hire a private security guard.|
|Eileen McDonagh:||That's right. It would make the resources of the state available to
all women. And rather than isolate indigent women as a special group, it
would say indigent women have something in common with all other women,
which, of course, they do, which is that if they are made pregnant against
their will, the resources of the state to protect them against nonconsensual
pregnancy should be available to them just as the resources of the state
are available to anybody who walks down an isolated street late at night.
Anyone who is threatened with a mugging or some other form of intrusion
of their bodily integrity or liberty is eligible for assistance from the
Most important, if the state helps anyone, it has to help everyone else who is similarly situated. And that is the premise here. The state does provide funds to protect people's bodily integrity and liberty, and yet the state is not providing those funds to pregnant women; that is unconstitutional. It is the comparison of the way the state provides funds to some people but not other people whose bodily integrity and liberty is being similarly threatened. Seeing how nonconsensual pregnancy situates women similarly with others who are the victims of intrusion of their bodily integrity and liberty opens the constitutional door to the Equal Protection Clause and to women's right to abortion funding as the necessary means for stopping a fetus from continuing its imposition of nonconsensual pregnancy.
|Dorothy Roberts:||I think that is a major advance in the way we think about reproductive liberty because as things stand now, poor women have absolutely no constitutional right to funding, under the current interpretation of the Constitution. And, so we have got this really major divide among women. Those who can afford to have their reproductive decisions fulfilled, and those who can't. And those who can't, effectively do not have the right. It is really a terrible circumstance in the way we think about reproductive liberty, and I think it is important to think about ways in which we can see this right as something that all women are entitled to, not just those who can afford it.|
|Speaker 1:||Eileen, I read your book with great interest, and I must say it is a brilliant dissection of what is the core problem with regard to pregnancy and abortion, that right to consent which is so important. We women know it intuitively that this is something that really has to be elevated and recognized. What interests me as much as the abortion aspect, is the implications that this new way of framing the issue holds for family planning services and contraceptive technology. I think that there is a lot of potential there for really bringing additional resources, both private and government, to the need for better and more available family planning services and technology. But I am interested to hear what you might have to say about this.|
|Eileen McDonagh:||I agree completely. I think everyone interested in reproductive rights and in abortion rights in particular is extremely interested in the broad range of issues that are a package. And, contraception, sex education, and preventing the problem of unwanted pregnancies are all things that clearly go along with the concern for abortion rights. And, to the extent that all of those issues might involve state assistance, this argument that demands state assistance for abortion funding would fit into a range of demands for state assistance in preventing the need for abortion, by providing sex education, for example, and by making contraceptives more available. So I see a consent to pregnancy framework for abortion rights as an important step that has the wider agenda you just pointed to.|
|Patricia Ireland:||Loretta, and then Twiss.|
|Loretta Kane:||What would be the benefit of the consent argument versus the sex discrimination argument?|
|Eileen McDonagh:||The benefit is that a consent to pregnancy argument invokes women's
fundamental rights as protected by Equal Protection Clause, and, thus,
avoids all the obstacles the Supreme Court has created for claiming sex
discrimination on the basis of the Equal Protection Clause. The constitutional
right to abortion currently is based on the Due Process Clause of the Fourteenth
Amendment, and as Dorothy Roberts stated, all attempts to gain abortion
funding have failed, because the Due Process Clause is a negative right
that protects people from interference from the government, not a positive
right that guarantees peoples assistance from the government. For this
reason, in order to secure abortion funding, most pro-choice advocates
feel we must switch from the Due Process to the Equal Protection Clause,
and there have been enormous efforts over the years to do so.
Normally, equal protection arguments involve identifying a group that the government is unfairly treating compared to another group. And in the case of abortion funding, the claim is that the government treats women unfairly compared to men, and the claim, therefore, is that such sex discrimination violates the Equal Protection Clause. There are two problems with sex discrimination, however. The first is that sex discrimination is not yet a strict scrutiny category which means that the Supreme Court is more lenient in allowing the government to treat men and women differently compared to other groups, such those based on race.
|General Audience Speaking:||We know that is a serious problem, we agree. We acknowledge that is a problem.|
|Eileen McDonagh:||Right. And as Dorothy and I were talking earlier, maybe eventually
Bader Ginsburg with the help of feminist organizations such as NOW
will be successful in getting sex discrimination to be recognized by the
Supreme Court as a strict scrutiny category, but that has not happened
yet. And that means that the state does not need a compelling interest
to justify a policy that is based on sex discrimination, it just needs
a kind of good reason. Yet, a second and an even more serious problem with
sex discrimination -- even if Ruth Bader Ginsburg is successful in declaring
and getting sex discrimination to be strict scrutiny -- is that despite
how counter-intuitive this may seem, the Supreme Court has ruled several
times that discrimination on the basis of pregnancy is not necessarily
a form sex discrimination. So, even if sex discrimination were strict scrutiny,
policies that discriminate on the basis of pregnancy are not necessarily
a form of sex discrimination.
After a lot thought and work, I decided, rather than to try to overcome the obstacles blocking the sex discrimination route abortion funding, I would just try to find a different path. From a strategic vantage point, a new route is advantageous because it does not require the Supreme Court to overturn existing precedents, which it is loathe to do. If it is a new route, at least the Court can think about it freshly, and it does not involve requiring the Court to change previous rulings. I do not think the Court is going to change its rulings on pregnancy and sex discrimination, but I do hope that the Court will be able to look at this new argument and rule in favor of abortion funding.
The consent to pregnancy argument for abortion funding, because it does not invoke sex discrimination, does not ask the Court to compare the way the government treats men and women. Rather, it asks the Court to look at the way the government treats pregnant women compared to other people who are the victims of intrusion of their bodily integrity and liberty. And that could be anybody. It could be someone walking down an isolated street who is being threatened by a mugging. If the state helps that person, then the state has got to help the pregnant woman whose entire body and liberty is being taken over by preborn life. So, a consent to pregnancy approach is a fundamental rights argument, not a sex discrimination argument, in terms of equal protection analysis.
|Patricia Ireland:||I am having these visions of all of the science fiction television shows that are on now, you know, The X-Files, and Millennium, all of those. I am envisioning somebody being kidnapped and held captive for nine months, and their blood increased and taken, and a new organ is grown in them.|
|Eileen McDonagh:||Yes. Exactly. I think that would be an especially great analogy if it were a man!|
|Patricia Ireland:||I think they just had one of those on Millennium, but I am not sure. They captured a man who was held captive for several years actually.|
|Audience Question:||Was he really pregnant?|
|Patricia Ireland:||No, but they were taking his vital bodily fluids.|
|Eileen McDonagh:||Well this isn't as far afield as we might think though, because..|
|Patricia Ireland:||I know, because in this case the FBI came and rescued him!|
|Eileen McDonagh:||Well, I am sure everybody heard recently about the remarkable medical
breakthrough where a father's bone marrow was used and injected into a
fetus in very early pregnancy to correct an immune deficiency, genetic
problem the fetus had. If the fetus had continued to grow, by the time
it would be born, it already would have its immune defenses operating,
and it would be more difficult or even too late to correct this genetic
problem with the bone marrow from another person. In this particular case
the other person was the father.
Now, this does involve men in pregnancy in a really new way. And they estimate that there are over a hundred genetic problems that could be corrected in this way. And, corrected, again, on the basis of bodily contributions from men given to fetuses in utero, not just women. I think it will help the public get a feeling for the necessity for a person to consent to give their body to a fetus during pregnancy to keep this example in mind. How many would agree that a father's body should be taken without consent to help a fetus in utero? I do not think many would advocate that private parties should coercively take body parts from men in order to help fetuses, but the example of giving a father's bone marrow to a fetus illustrates that the issue of consent must apply to both men and women.
|Patricia Ireland:||Twiss, you had a more serious comment I think then mine.|
|Twiss Butler:||Well, I appreciate your arguments, having long argued that any barriers to abortion were an issue of sex discrimination and a violation of bodily integrity.|
|Eileen McDonagh:||Right. Right.|
|Twiss Butler:||So, I could not be more in agreement. But it seems to me that these arguments, however practical, share the same disability that Roe v. Wade did in trying to work around constitutional barriers to women's equality without confronting them. Roe asserted constitutional rights for women which, by all evidence, men had never consented to recognize. The same problems of lack of consent in pregnancy also seem to me to apply to a lack of consent constitutionally. So we have to ask whether we are acting in women's interest if we continue to use arguements that don't demand consistency with a constitutional right to bodily integrity which recognizes people's human rights. The Fourteenth Amendment was created for that purpose, and the concept of bodily integrity grew out of it because of continuing abuses that denied people's humanity. But men ratified it on the understanding that it did not apply to abuses against women as a class. By leaving men out of the equation here, as was done with Roe v. Wade, we consent to start with a women already pregnant and then argue about what to do with her, while ignoring the social meaning of such an argument, and failing to openly confront what it means to men to be able legally to deny equality and humanity of a pregnant woman. I would like to know how your analysis addresses that problem. It can't be avoided, as far as I understand.|
|Eileen McDonagh:||No, no.|
|Twiss Butler:||Women do not have a guarantee of equal protection of the law, and they don't have a Fourteenth Amendment, and they don't have a guarantee of bodily integrity.|
|Eileen McDonagh:||Well, I agree..|
|Twiss Butler:||Though by discussing it we advance them politically.|
|Eileen McDonagh:||Well, it is because, exactly, because of what you said that I do not
think we have the foundation yet to make claims on the basis of sex discrimination
or on the basis of an argument focused on women per se. I do not think
the foundation is there constitutionally to make a claim for abortion funding
going that route. That is why I specifically looked for a way to engage
constitutional doctrine that would not be dependent upon recognition of
sex discrimination, because I just do not think we are culturally or legally
or constitutionally at that point where that is sufficiently established.
The particular constitutional argument that this abortion funding reframing rests upon was validated in Romer v. Evans which is a recent case where the Supreme Court did rule it was unconstitutional to exclude a group from political protections that are available to other people, even if the group in question has no special standing as a suspect group. The Court upheld the ruling by highest court in Colorado, which had struck down an amendment to the Colorado state constitution as unconstitutional on the grounds that the amendment deprived a group, defined in terms of sexual orientation, from equal access to the political process, even though the group in question enjoyed no constitutionally protected status against government discrimination.
A consent to pregnancy foundation for abortion rights draws upon the Court's ruling in Romer by arguing that there are some forms of government protection that must be available to all people similarly situated, even the people in question are not members of constitutionally protected groups.
As far as fathers are concerned, let me emphasize that obviously, it is not my goal in a larger sense to exclude attention to men in relation to reproductive rights or reproductive issues or certainly, parenting. Yet, I want to make a very clear distinction between the parenting that is involved in pregnancy, which is a relationship between a woman and a fertilized ovum and a fetus, and the social parenting that you are talking about. Most people would argue it is social parenting that occurs after birth that is the important parenting for determining the rest of your life, and men and women can be equally involved in social parenting and should be. So, this approach is not meant in any way to exclude attention to men. It is just that the attention is being focused on the pregnancy part of parenting because that is where the abortion funding issue is relevant.
|Patricia Ireland:||I know Twiss has a follow-up and then I've got a question behind me on health care issues, but I could see Twiss having a follow up question.|
|Twiss Butler:||If I may specify, my questions were not about parenting, but the social dominance of men over women and, therefore, the meaning of pregnancy as a form of demonstrating that dominance. One might have thought that if Roe v. Wade were a constitutional decision, it would have ended the quarrel over access to abortion, and indeed would have supported federal funding for abortion. But it didn't. And instead what we find is that liberty, as you have called it, to obtain an abortion is constantly at risk. And if even women with the resources to exercise their liberty can't do so because there is terrorizing of the people who provide the service as well as those who partake of it, that implies a constitutional barrier to limits on women's liberty. So I would wonder if another approach that does not name the problem would fare any better, or whether it too would be vexed at all times by opposition which the Constitution did not prevent.|
|Eileen McDonagh:||Well, I think we're always talking about degrees of improvement and I am not trying to say this is a panacea..|
|Twiss Butler:||Some of us are more radical!|
|Eileen McDonagh:||I don't think this approach is going to solve all problems, but I definitely
think it is improvement. And the example of clinic bombings or terrorism
directed toward people who provide abortion services is a good example.
It happens, but the state does intervene and try to stop such activities
by finding the people who do them, and those people are held accountable
by the courts and by the state. Just imagine the situation if the state
were to say, "we are going to protect potential life by simply allowing
people to bomb clinics. And when they do, we are not going to do anything
to stop them. We are not going to try to find out who did it. We are not
going prosecute. We are just going to let that happen." That clearly would
be a much worse situation than we have right now. And, so, even though
the state's involvement in trying to stop terrorism doesn't stop it all
together, it is certainly better than nothing.
And that is how I would see the state's involvement in abortion funding. Right now, it is constitutional for the state to say, "We are going to protect potential life by doing nothing to stop it from imposing pregnancy on a woman." The state could allow potential life to kill a woman, and probably that would be constitutional..
|Twiss Butler:||But not politically possible.|
|Eileen McDonagh:||Well, perhaps, but what I am trying to say is that, that is worse then involving the state to some degree and providing funds to stop potential life from intruding on a woman without consent. So, I agree there is a political process obviously at work here, but the law is important in terms of framing for where the state will step in and where the state will not step in. Right now, it is constitutional for the state not to step in at all when a woman is pregnant, and I think that is what is wrong. The state has got to step in and provide funds. Just like the state steps in and tries to stop abortion clinic terrorism, even if it is difficult and impossible to stop it completely.|
|Patricia Ireland:||Some of us have been revisiting the discussion of constitutional equality.
And, in particular, reconceptualizing the notion of equality to include
nondiscrimination on pregnancy and abortion and to broaden that concept.
I guess, we may end up on parallel paths. That does not mean that you do
not raise an interesting framework, and one that might be successful, and
often we do not know which is going to be in the right place at the right
time. And get the right people on the Court or in the Congress or in the
state legislatures. But, we would like to give you some information and
Dorothy as well on our discussions of a constitutional amendment that would
include nondiscrimination on pregnancy and abortion and not deal with a
Supreme Court that has not quite figured out that only women get pregnant.
I am sure they must have that somewhere in their backgrounds, before they
got on the Court.
We had another question that takes us, I think, in a different direction.
|Speaker 2:||I was just interested in your argument in the context of the whole health care funding issue in general. I think all of us are aware that our right to health care is very tenuous. That people who have the means get better health care. And now the Medicaid system is under attack and more and more people are being removed from the Medicaid system. I worked for many years with people who had cancer, and I know that if you have a bad pap smear, you do not have a right to have a cervical biopsy. And, I have worked very hard, spent many hours and days of my life trying to secure some kind of funding for people to get surgery when they have a life threatening illness, potentially. And, it seems to me that somehow this has to fit into the whole arena of how we go about providing equal access for all people to health care.|
|Eileen McDonagh:||It does. I agree, and I could not support you more on the efforts to achieve health care options and resources for people. What I want to point out though, is that when funding is denied for health care, generally it is on the grounds of economic restrictions or lack of resources. So that the particular type of health care or the coverage of the health care is so broad that sometimes it can come to be viewed as taxing, literally and figuratively, beyond the resources the state can provide. The rationale for providing health care, however, is entirely different from why abortion funding is restricted. On solely economic grounds, it is cheaper for the state to provide abortion funding, then not to provide abortion funding in terms of just the economic issue that is involved. And so it is not because the state does not have the funds to provide abortions that abortion funding is withdrawn from health policies. Rather, the grounds for withdrawing abortion funding from health policies is that this is a legitimate means the state can use to protect preborn life. When the state withdraws funding for cancer, it is not because, obviously, the state is protecting cancer cells. So, this is a big difference. And, what I am trying to point out here, is, this is unconstitutional to protect preborn life by allowing it to do something to another person, even kill the person, when we do not protect born life that way.|
|Patricia Ireland:||We have another question from Linda. I am going to suggest that perhaps we have a little more discussion and then allow you both to make some closing observations. And, I am sure that these discussions will continue informally, if you all are able and willing to stay.|
|Speaker 3:||We don't expect people to pay for their own defense of their bodies against assaults by born people, so why shouldn't the state provide a woman who can afford an abortion with same public funds for an abortion that the state would provide to a woman who may not be able to afford one?|
|Eileen McDonagh:||I am glad you asked the question so I can clarify that I am making the claim all women have a right to abortion funding. Yet, I am trying to emphasize that currently the impact of the way Roe was framed hits indigent women much harder and more seriously then it hits other women. So, that in reframing it, indigent women will be the ones who most immediately gain because they are the group that isthe most vulnerable. But, it is all women who will be put on the same foundation for the obligation of the state to intervene on their behalf.|
|Patricia Ireland:||Okay. You have a question at the end of the table.|
|Speaker 4:||Yes, for actually both Patricia and Eileen, are there any plans to test this in court? Obviously, you want to take it to the Supreme Court and see what happens. Are there any plans in place to do that?|
|Patricia Ireland:||Do you want to respond first?|
|Eileen McDonagh:||Well, Dorothy can also, I hope, comment on this. Plans might be too formal a word, but there are definitely ongoing conversations with a number of constitutional law scholars and political activists, and these conversations are definitely directed to an eventual goal of testing this "consent to pregnancy" approach to abortion rights. And, if that is a plan, then, yes, there is a plan.|
|Kim Gandy:||You might consider doing what Ruth Bader Ginsburg did as a lawyer. She always took the men as plaintiffs when she was arguing sex discrimination. And the court, horrified, said "Oh, my goodness, you can't discriminate against these men on the basis of sex!" Maybe the test case should be a father and the mother is trying to force him donate bone marrow to a fetus in utero.|
|Eileen McDonagh:||Not just donate, but I think we should capture the man and forcibly take bone marrow. That would be the analogy to pregnancy.|
|Kim Gandy:||Then it would be a similar strategy to the one that was successful.|
|Eileen McDonagh:||It would also make better headlines, it would definitely catch the attention of the general press.|
|Patricia Ireland:||I think part of what Eileen is underscoring by questioning whether
the use of the word plan is too formal a word is whether it is imminent.
That is, are we looking right now for a pregnant women to take this case.
The development of legal theory, and especially through the courts and
constitutional theory as opposed to going to a state legislature or the
Congress often takes a great deal of time, and a change of Court personnel.
And, while we have talked about an amendment process to the Constitution
that would state in terms so clear that even Chief Justice Rehnquist cannot
mistake that sex discrimination does include pregnancy discrimination and
discrimination against pregnant women when they are seeking an abortion,
that is a different political process then developing a line of cases.
And, I think we do have to take a longer term view and a longer term strategy.
The discussions that are going on with constitutional lawyers and scholars may result in law journal articles, in articles in the more popular or accessible legal journals that the public reads. And, ultimately may develop a line of cases, but I don't think we will be taking a case or that Eileen will be promoting the taking of a case within the next couple of months on a track to the Supreme Court with in the next term. I think that is a strategy that would not be well thought out. We need to develop a lot of pieces, including public opinion as well as the legal side before we can have any hope. We are not into beating our heads against walls in our politics. I don't know Dorothy if you have a comment on that. You're the law professor here.
|Dorothy Roberts:||I think you're absolutely right. This is a new book, and we need time to think about the best way to strategize, to talk to people who are mobilizing in the streets as well as academics in the ivory towers, and have a conversation about the best way to proceed.|
|Patricia Ireland:||Are there other questions?|
|Elizabeth Clift:||I just wondered how did you hit upon this as a legal argument? Hours in the law library or...?|
|Eileen McDonagh:||No, actually, years ago I was teaching a course in political science
in which I was trying to distinguish the difference between the social
sciences that study people and the natural sciences that study objects,
such as the stars and rocks and other things. And, my conclusion was, although
there are many ways to compare the two fields, when you are studying people,
there are always ethical dimensions. Always. And that is the key difference
between studying rocks and studying people.
And in order to communicate this ethical dimension to my students, I assigned, and this is way before I was ever interested in abortion per se, I was interested in ethics, assigned a very classic article that was written actually before Roe v. Wade was even decided; it was written in 1971. It is a classic article by Judith Jarvis Thomson, who's a moral philosopher, and it is called "In Defense of Abortion." And, she is one of the pioneers to say that we should not always think abortion rights depend on whether the fetus is a person or not. There is another way to look at this. And, even if the fetus were a person, the burdens of pregnancy are so extensive, that from a moral point of view, you can be a moral person, and say no, I will not give my body to the fetus.
This article is probably one of the most anthologized articles on abortion rights that has ever been written. And, it bothers some people because of what Dorothy said -- women are portrayed as giving their bodies to a fetus when its growing and women are pregnant. And women are portrayed as naturally self- sacrificing, naturally nurturing, so it was very challenging to hear a moral philosopher say a woman could be moral and just say no, I don't give my body to the fetus and I am still moral.
Judith Jarvis Thomson's argument always kind of stuck with me. And, then what happened is in 1989, the Supreme Court ruled in a very, very alarming case, Webster, in very strong language, that it was constitutional for a state to withhold funds for abortions, withhold the use of public personnel for abortions and withhold the use of public facilities for abortions. This 1989 decision was for the pro-choice community, I think perhaps most people here would agree, for the pro-choice community this was like Roe v. Wade for the pro-life community. The Court was very conservative at the time. The definition of public facilities could have been interpreted very broadly to include every road that the state funded. The use of public personnel could have been interpreted very broadly to include every physician or health care worker who was licensed by the state. And, with a conservative Court, this could have, many people felt, resulted in eventually overturning Roe v. Wade because the breadth with which public facilities and public personnel could be interpreted could have effectively made abortion illegal to be performed in a state, if you defined facilities and employees broadly enough.
At that point, some of my friends started marching in the streets, lead by groups such as NOW and Patricia Ireland, and me, being an academic, I marched to the library, and stayed there for seven years until I finished this book. And, this is the story behind this argument.
|Patricia Ireland:||It is also a very important part of our movement that I think often does not get the visibility. The legal and moral and philosophic underpinnings. We are often challenged by the right wing and by political forces to articulate the values that underlie our politics. And, I think that is another reason that I was anxious to make this link and start this dialogue with the two of you and with others that you know who are similarly engaged. I think Melinda wanted a word and then I think we can wrap up.|
|Melinda Shelton:||Just to play devil's advocate here. Thinking along the lines that you did. And I am thinking of sound bites on the other side. The ones who at this moment are marching in the streets in Washington or they will tomorrow and their argument, "absolutely the fetus has to take precedence.". And I was thinking one of their slogans is "It's a baby, not a choice" and I can see it now, if Eleanor writes something or when this does hit out into the media, you know, "It's a baby, not an alien, not an invader, not a body snatcher". And so I am thinking on those terms and I know because of all these hours and years of preparation for this. What is your argument? Let us just pretend you have a case. You are going to have someone fighting for the fetus's right over the woman's body, which we know is the whole issue here. We know that. But at the same time they are going to be taking precedent with them to Court with you. Right now for instance, they have got a woman who is being prosecuted for ingesting massive amounts of alcohol and her baby was born with a tremendous alcohol blood level and so they have, I don't know what they've charged her with, something about reckless endangerment, maybe even attempted murder of a fetus. You have got people, if they are, say, DWI driving and they hit someone, or they are irresponsible in their driving and they hit a pregnant woman, and she loses that fetus, they are charging that person with manslaughter or something similar. Again, putting emphasis on the fetus, including the mother as well. So, what's your argument? Just pretend.|
|Eileen McDonagh:||Sure. Well, I do. I have pretended before, and I will pretend again.
Well, actually it is the pro-life people who have based their whole movement
on the fetus being separate from the woman, with separate interests, separate
needs and should be under separate protection. And, my response is, if
that is the route you want to take, which is clearly the route the pro-life
groups have taken, and to some degree they are supported by the Supreme
Court because in Roe v. Wade the Supreme Court did say that the
state has a separate interest in the fetus distinct from its interest on
behalf of the woman, and the state has to balance these two interests.
So the pro-life people are not completely unfounded in the demand that
we think of the fetus as a separate entity under protection. Currently
it is constitutional for a state to do that. My response is, if that is
how you are going to portray the fetus, then the state is under an obligation
not just to protect the fetus, but to stop the fetus from causing harm,
just as the state would stop a born person. I would say to pro-life people,
the demand for pro-life people has been that the fetus should have the
same protection as a born person. And, the problem is that currently the
fetus has more protection than a born person. The fetus is allowed to do
more to the woman than any born person would ever be allowed to do, even
if it is a kinship relationship and even if a person's life is in danger.
And, I would say to the pro-life people, how can you support a claim that
would give more protection to the fetus then a born person has? And, we
do not know yet what the pro-life response will be, but that is certainly
how I would proceed.
On the issue of fetal protection, that is a related, but a somewhat separate issue, because I am talking about a situation where a woman does not consent to a relationship with a fetus, not a situation where she has consented and then a third party injures a fetus in this context where there's a consensual relationship between her and the fetus. So, I would try to separate those two questions: the fetal protection from the right to an abortion.
From a political standpoint, however, in terms of strategy, I would say this, that a lot of people I know in the pro-choice community are extremely nervous about what they see as a collision course between the tendency of courts to grant more and more protection to fetuses in the context of third party injuries with women's right to abort a fetus. And, one thing this argument does is it provides a way of clarifying the difference between protecting a fetus a woman has consented to have a relationship with and still retaining for a woman, not only the right to an abortion, but to abortion funding when she doesn't consent to a relationship with a fetus. And, so, I think potentially a consent to pregnancy approach to abortion rights could help out with what is viewed as a kind of threat to the right to an abortion as currently framed simply on the basis of your right to do with your own body as you chose, which is the current foundation for the right to an abortion.
|Patricia Ireland:||Well, I know that this is just the beginning of a discussion, and we have many copies of Eileen's book here, and we'll look forward to Dorothy's book's publication. When is itanticipated?|
|Dorothy Roberts:||Well, later this year, by Pantheon.|
|Patricia Ireland:||Later this year. Alright. We'll keep an eye out for that and I am sure that you all could stay for a little bit if folks want to talk with you further informally, but I know some folks do need to get on with the day. Thanks to all of you for being here and to Eleanor and Tony K Films for taking part. We appreciate very much your thoughts and sharing your time with us. Thanks.|