A Dialogue On Abortion in the US
By Julia Moser
From Listen, Ladies Podcast
One in three women have an abortion during their reproductive years, and often these women remain quiet about their experiences. This means that the discourse about abortion is frequently deficient. To combat this deficiency, Carol Sanger, a professor of law at Columbia University Law School, has written a book entitled About Abortion: Terminating Pregnancy in Twenty-First-Century America.
Julia Moser sat down with Carol to talk about the book and the current political climate in the United States; and following is their conversation.
Julia Moser (JM): The first thing I looked up when I started reading the book was that you are not related to Margaret Sanger, correct?
Carol Sanger (CS): No, I am not. I’m often asked that question though, and one time it happened I was at a cocktail party where someone said to me at the end of it, “So good to meet you, Margaret.”
JM: How did you come to be an expert in this subject, and what was your journey getting here?
CS: I teach family law, and one aspect of family law is reproduction—but it’s not a big part of the course because you’re too busy teaching divorce and adoption and custody and things like that. But I’ve always been interested in the ways that law influences decisions by women to have children, to not have children, to keep children, to adopt children—so I’m really interested in the mother-child relationship. And it seems to me that abortion is a decision about family making, and so it fits in with the general family law subject matter. And then as a feminist, I’ve just always been interested in it as well. In law schools, abortion is usually taught in constitutional law classes, which I don’t teach. And then I thought, ‘Well when you teach it that way, you find out what the legal rule is and where it fits into the historical line of cases involving privacy.’ And I thought that that’s pretty dry—especially considering what women go through when deciding whether or not to have an abortion. So that’s what I want to look into: decision making about abortion and how law influences and treats both the process and the actual decisions that get made. So that’s how I got into it.
I started this book right after Obama was first elected, and I started thinking about it and sort of sketching out. I thought this is a great time to do it: The court is safe; Roe v. Wade is safe; and I finished the book and turned in the manuscript on election day. The next day I wasn’t feeling that happy, and since that it’s just been an avalanche of warnings and cutbacks.
JM: The gag rule was reinstated almost immediately.
CS: Well it’s traditional that new presidents do something with the gag rule. They either reinstate it or repeal it. And that’s been going on for about five presidencies.
JM: Would you mind just explaining what the gag rule is for readers who might not know?
CS: It has to do with aid to foreign countries. The new policy is no aid to anybody who espouses abortions or provides them. So it’s a real cutback around the world. Under the second George Bush we also had a domestic gag rule where there was a cutback on federal funding to clinics, and anybody who got federal money wasn’t allowed to talk about abortion—which is a very crimped approach to providing women health care. And that’s really important because one of the things that Trump is doing and attempting to do, although he’s finding a bit of resistance right now, is to move abortion out of health care. So defund Planned Parenthood, not cover it under whatever new health plan they might possibly come up with. The Hyde amendment is another example.
I was thinking about what the importance is of moving it out of health care. You know, all these medical services we offer, but not abortion? Okay, so if it’s not a medical procedure, what is it? I think moving it out of medicine is intended to be the first step toward making abortion criminal again.
JM: Yes, there was that comment Ivanka Trump made a few weeks ago to Cecile Richards, asking why they don’t just separate all Planned Parenthood clinics into two facilities, one for abortion and one for everything else.
CS: That leads to something else, which is one of the big goals of public health people and abortion providers: getting abortion provision back into hospitals so that it’s not standing so isolated in clinics. After Roe was first decided, the thought was, “Well women would like privacy by getting an abortion in a clinic, and for abortion provision you don’t need such stringent hospital-operating standards.” But what it’s turned out to do is make it easy to be picketed or bombed. So Ivanka’s suggestion is going in exactly the wrong direction. I think the goal is to normalize abortion as a medical procedure rather than highlight it as something different.
JM: One of the themes in the book is secrecy vs. privacy. Can you talk a little about the distinction between the two?
CS: Yeah, I really like that. I think the secrecy/privacy distinction is a real contribution. Part of why I wrote the book was to expose to women how things work so they could see, “I feel terrible, I feel so guilty, I feel so ashamed.” Okay, you do. And here are some reasons why. So just going back to privacy/secrecy first, lots of women and girls don’t tell anyone they’ve had an abortion. Girls often don’t tell their parents, some women don’t tell their husbands, and women often don’t tell their own doctors. They go out of town to get another provider to do it, and one of the big questions these women ask the provider is “Will my real doctor know?” So it’s something you just don’t want to divulge. And so if you said to somebody, “Have you ever had an abortion?” they might reasonably say—I don’t mean stopping somebody on the street, but if you’re in a group and you’re talking about this—they might reasonably say, “It’s really a private matter, and I don’t want to talk about it.” You think okay, yes it is a private matter. It involves the body, it involves blood, it involves reproductive decision making, it involves sex. So you could imagine a person might want to keep it private. Also Roe v. Wade, the Supreme Court case that made abortion legal in 1973, was decided under the doctrine of privacy. Our doctrine of privacy under the constitution is broad enough to encompass the decision to have an abortion. So there’s all this privacy linked with abortion.
The more I thought about it, I thought, ‘It’s not exactly privacy in the sense that we like to think of privacy working.’ We think of privacy as something that’s to your good: You get to decide who knows what about you. That’s empowering. You control your social world in a way by controlling information that people know about you. But I think it’s quite a different matter if the reason you don’t disclose having had an abortion is that you’re scared to speak about it because something bad will happen to you. Indeed that is what I would call abortion secrecy. The outcome is the same—you don’t talk about it—but they’re differently motivated. One is, ‘I’m controlling what people know.’ And the other is, ‘If I tell anybody, I’m going to lose my relationships, I’m going to get in trouble with my parents, I’ll be harassed, I’ll be stigmatized.’ All these negative things. So that’s the distinction I make, and I think the distinction is power far beyond will you talk to your friends or not. I think that if we don’t talk about abortion, then nobody really knows who’s having abortions; nobody becomes aware they actually know someone who’s had an abortion.
JM: The statistic is one in three women?
CS: One in three women will have had an abortion by the end of their reproductive years. Now, that’s a lot of women. And of course reproductive years go from maybe fifteen to forty or forty-five, so that’s a thirty-year period where women should never get pregnant in an unwanted situation. I mean, I don’t know what the statistics are on how many times a woman has sex over a thirty-year period, but one can see that it’s not impossible to have an unwanted pregnancy at some point. So if we talk about it—if women would talk about it—then we could have a more honest conversation. Because without talking about it, those who oppose abortion get to control the narrative. They get to say, “It’s promiscuous women, it’s women who didn’t care enough to use birth control.” And they just don’t take account of the complex reasons, the many reasons, why women choose to terminate a pregnancy. So if we don’t have that in place, an accurate conversation, then you can’t hope for better legislation.
JM: Speaking of facts, how do you even begin to debate someone on this subject when they’re not speaking with correct knowledge?
CS: That happened to me last night at an event at The Strand where someone wanted more or less to debate me on the morality of abortion, and that’s not what the book is about. And part of what I said to this gentleman was that moral questions belong to each person. Nobody who wants abortion to remain legal will insist that somebody have an abortion. If it goes against your morality, don’t do it. And don’t have sex, and don’t do whatever else your morality tells you isn’t the right thing to do. But that doesn’t mean you get to control my view of what’s moral, which is what the case often comes to when fetal life is protected. Nobody believes in the slaughter of infants, but it’s some time between conception and childbirth that most people think the fetus takes on enough qualities of a human person to be protected as a person under the law. That argument is made by pro-life people who say, “It’s from the moment of conception because it’s a human. You know you’re not carrying a frog embryo or something else. It’s a being because it’s something, and it’s alive because it’s growing and eating and all that.” But the fact that something could be an early human being doesn’t make it a protected person under the constitution, which is something that Roe said. So how do you argue with somebody? I try not to argue with anybody because what I think will turn the tide is a sort of social-contact theory: The more that you know people whom you like and care about who have had abortions—
JM: That’s something you talk about in the book with people coming out as gay.
CS: That example is really a good one in that no one thirty years ago could have imagined we would have same-sex marriage. That was unthinkable and crazy. I mean thirty years ago homosexuality was just finished being a crime. Just being gay had been a crime, not to mention having gay sex had been criminal, and that was the case thirty years ago. And then people started coming out. And they started coming out to their parents. And then their parents organized groups like PFLAG (Parents and Friends of Lesbians and Gays), and then it became normal to have somebody next door to you buy a house and have children. And so I think that’s the more productive path.
And the funny thing is, if you’re gay or lesbian or another sexual minority, in some sense you may regard that as a full-out identity. ‘I’m gay; that’s my primary identity.’ Not everyone does, but that’s something I can’t shake. Having an abortion is not like that at all. A first trimester abortion takes fifteen minutes and then two hours to recover, and it happens in a day. Or if you use medical abortion—a pill—it happens in three days. And I don’t see why it has to become part of a woman’s identity. I don’t think most people regard it that way and walk around thinking, “I am a woman who has had an abortion. Woe is me.” I think it’s more an experience or a decision. It’s a medical procedure that you had.
JM: In the book you go over a few pop-culture examples of abortion. Do you have a favorite portrayal?
CS: What I have mostly are things I don’t like. Like everybody told me I should go see the movie Juno—that I would like it so much—and when I saw it, I thought, ‘This is an anti-abortion movie.’ I mean they go in, and it shows exactly when she sees the ultrasound, and of course she went in and had to do that. And it wasn’t that good on adoption either, so I thought that was a disappointment. I thought Knocked Up was ridiculous. So I think we need better, more complicated films about abortion.
JM: I was just thinking about Obvious Child as a pretty good example.
CS: That was really interesting. I was also thinking about some of the pop music that’s coming out. Nicki Minaj has this song where I thought, okay subtle, but it’s just a little piece you’re dropping in. In terms of cultural, if not pop-cultural things, maybe you saw in the book there was this very interesting thing in 2013 in the New York Times in the wedding vows section where a couple had a full page—they were the kind of interesting couple you want to know all about. He was an NBA player, and she was a sports announcer, I think, and in it, they said that when she got pregnant they decided together that they would not have the baby. And so I thought, ‘Whoa, whoa. This is very interesting that that could be acceptable for a wedding announcement.’ And I was kind of impressed by it because I thought that’s the kind of normalizing thing. I mean, not everybody’s going to put that in their wedding announcement or would want to. But I thought it was really interesting.
JM: What are the most extreme state laws that have been passed regarding abortion?
CS: One of the ones that I think exposes what’s going on is the law passed by Texas right after it lost the Supreme Court decision in Whole Women’s Health in 2016. They had this bill ready to go, it came out within a week, I think, and it would have required women who have an abortion to bury or cremate the fetal remains. So think about it: What is the point of this? What is the point of that requirement, which a number of states have now picked up? There is nothing medical about it at all, which is what entitles the state to regulate—the fact that the state may regulate a medical procedure. But telling someone that she has to bury or cremate the remains would be like telling someone, you have to bury or cremate your gall bladder. We can’t prevent you from having an abortion because there’s Roe v. Wade, but we can make you pay for it in emotional ways, in financial ways, by raising the cost of abortion, by putting extra requirements on clinics, etc. So it’s just cruel. And a lot of women would just say, “I see what you’re doing, and I’m not going to be bothered by it” and hire someone to take care of this, but it’s a cruel thing to do, to make someone…
And it’s not only cruel, but people often come to their decisions about abortions based on their religious training, and so some Catholics and evangelical Christians believe that a child exists from the moment of conception. But we shouldn’t impose other people’s religious beliefs on everyone. We don’t do that. There are no sins in the constitution. We should remember that. I think women should really think about this, and they should tell their daughters about abortion. I think abortion should be in sex-ed curricula. Especially since, as far as teenagers go, thirty-seven states require them to have hearings before a judge if they don’t want to tell their parents. They should know about that as part of their civics lessons.
JM: Are there any cases right now that you think could lead to Roe being seen again?
CS: It isn’t that Roe would be seen again right away. What I think is a more likely prospect is that the law that was made last summer in the case Whole Women’s Health v. Hellerstedt (which said if states want to regulate abortion, the regulation has to benefit women’s health) is going to be whittled back by the pro-life movement. They’re going to say that you have to prove that it was for women’s health and that the states have more power than that case gave them. The good news is you can prove it statistically. They found that the restrictions Texas had put on abortion provision were actually contrary to women’s health: They had the effect of closing so many clinics that women were jammed to capacity in the facilities that did remain, and that it was actually bad for them. So that’s where I’m looking for trouble: They’re going to try to whittle back that law.