Friday, November 21, 2008

South Dakota's Less-Famous Loony Abortion Law

Bad abortion laws in South Dakota are a lot like a game of Whac-a-mole. You knock one down and another one instantly pops up.

You probably heard about the latest attempt to ban abortion via referendum in South Dakota, which went down to defeat on November 4. I'm willing to bet you're less familiar with another batshit abortion law that was passed there in 2005 and finally went into effect last July after a judge lifted an injunction against it. I only heard about it now through my nerdy reading habits.

According to the latest New England Journal of Medicine, South Dakota's new law mandates that
physicians in South Dakota must tell any woman seeking an abortion that she is terminating the life of "a whole, separate, unique, living human being" with whom she has an "existing relationship," that her relationship "enjoys protection under the United States Constitution and under the laws of South Dakota," and that abortion terminates that relationship along with "her existing constitutional rights with regards to that relationship." ...

The law also requires that doctors give pregnant women a description of medical and "statistically significant" risks of abortion, among which it includes depression and other psychological distress, suicide, danger to subsequent pregnancies, and death. Physicians must tell women the approximate gestational age of the fetus and describe its state of development.
Information is good, right? But this isn't information, it's propaganda.

Take, for instance, the law's characterization of the fetus. Since when is a fetus a "separate" being? I'll gladly grant the rest - that it's unique and human and alive - but "separate" only applies once the fetus is born. Until then, it's intimately tethered to a woman by its umbilical cord. This is an elegant and wondrous system. But separate, it's not.

The only reason this law can claim "separate" status for the fetus is that we've grown used to seeing disembodied fetuses. Intrauterine photography is pretty amazing. It's also deeply deceptive, because it routinely effaces not just the womb but the woman - a woman who most assuredly is a separate, unique human being. (See Barbara Duden and Valerie Hartouni for more sophisticated versions of this argument.) When we see a fetus floating through what appears to be a starless universe, it's very easy to imagine that the fetus is an autonomous person - and to forget about the personhood of the woman whose universe it inhabits.

The legally protected "relationship" between woman and fetus that this law posits is entirely nebulous, as the NEMJ argues. The law's vagueness opens up doctors to second-degree misdemeanor charges, which of course is the editorialists' main concern. The NEMJ doesn't directly address the impact of this "relationship" language on women, though it does make a connection to the new paternalism espoused by pro-life activists and enshrined in Gonzales v. Carhart:
In the U.S. Supreme Court's most recent abortion case in 2007, Gonzales v. Carhart, Justice Anthony Kennedy noted that "some women come to regret their choice to abort the infant life they once created and sustained." Had these women been better informed, he suggested, they might have chosen not to abort and thus been spared the "grief more anguished and sorrow more profound" caused by discovering how their pregnancy had been terminated. Many commentators interpreted Kennedy's words as an invitation to state legislatures to amend abortion statutes to add informed-consent requirements. South Dakota appears to have answered this invitation.

(Source: NEJM)
This language affects far more than just the doct0r-patient relationship. It shapes the cultural image of the women who are unhappily pregnant. By using terms like "right" and "protection," the new law casts these women as the victims of abortion - as mere pawns manipulated by husbands, lovers, and doctors. This has been a tactic embraced by anti-abortion activists for the past several years. Since it bore fruit in Carhart v. Gonzales, we can expect the victimization thesis increasingly to permeate anti-abortion rhetoric.

At the same time, the "relationship" palaver imputes a mother-child relationship where none exists - not yet and maybe not ever. If a woman rejects the victimization frame and fully owns her decision to terminate her pregnancy, this instantly triggers the bad mother frame. This language is an attempt to invoke mother guilt, pure and simple.

Even the "medical" information is a load of ideological crap:
The purported increased risks of psychological distress, depression, and suicide that physicians are required to warn women about are not supported by the bulk of the scientific literature. By requiring physicians to deliver such misinformation and discouraging them from providing alternative accurate information, the statute forces physicians to violate their obligation to solicit truly informed consent ...

(Source: NEJM)
Yep. And it's not just psychological risks that the law fabricates; it also suggests that abortion is physically perilous. In fact, the opposite is true. A woman is over twenty times more likely to die from a full-term pregnancy than from a first-trimester abortion, according to the ACLU. (For more on the strong safety record of early abortions, see the Guttmacher Institute's Fact Sheet on Induced Abortion in the United States.)

Of course, medical and legal facts and logic had nothing to do with the framing of this law. It's an attempt to intimidate women. From that angle, South Dakota's consent requirements are sadly incomplete. Why not round out this "information" with the risk of a vengeful god casting thunderbolts at women who abort?


John Pine said...

I think Justice Anthony Kennedy has a touch of poetry in his utterances, very unusual in a judge. But even though an abortion requires the intervention of at least one external person (who I think should be allowed a say) you need one hell of a lot of poetry to stand between an angry woman and her abortion. Is a woman's protectiveness of her aborting rights the new maternalism? "Don't you dare come near my thought-child!" Tenderness standing on its head?

Following legalisation in Roe v. Wade the number of abortions stood at roughly thirty-seven million by 2004 - already six times as many as there were jews killed in the holocaust. Certainly this made the crime-rate go down massively because of the elimination of so many unwanted children who might well have grown up to be criminals. But as G K Chesterton (may have) said, "When there aren't enough hats to go round, the problem isn't solved by lopping off some heads."

Following Steven Levitt and Stephen Dubner in their brilliant book 'Freakonomics', if you cold-bloodedly consider one new-born child to be worth 100 foetuses, the 1.5 million abortions which take place in a year would translate as 15000 fully-fledged human lives.

My own experience of women who have had abortions is that they do get massively depressed (and even unhinged) afterwards. I do question the NEJM on that.

Sungold said...

I'm not terribly sympathetic, either, to the crime rate argument as a justification for abortion. You could stop crime altogether by exterminating all of humanity.

But remember, the number of abortions in the U.S. stayed steady from the last pre-Roe to the first post-Roe year. Legalization didn't drive the abortion rate up, any more than it is responsible for the recent decline in abortions.

As for the psychological sequelae of abortion, that would merit a whole 'nother post. For now, I'll just say that abortion is often an unhappy thing - as is an unwanted pregnancy. Remember, too, that postpartum depression is very very common. Hormonal shifts can trigger very serious emotional problems. You can't pin that specifically on abortion, however.

John Pine said...

Can we get accurate figures pre-Roe? Abortion was illegal and carried out in secret!

In the first year post-Roe (1973-74) there were approximately 750,000 abortions. But that more than doubled and finally leveled off at an annual 1.6 million from 1980 onwards - as people became accustomed to the new law and more facilities became available. Norma Roe (real name McCorvey) in whose name the law was brought in, renounced her allegiance to legalised abortion and became a pro-life activist.

I take your point about post-partum depression. But I think the experiences of having a child and having an abortion must be so utterly different, how could anyone find them comparable?

Certainly chemistry affects the mind, but the mind also affects chemistry: the physical effect of the experience of danger is a small example of it. Back pain is another! (Have you read that book yet?)

Sungold said...

No, John, I haven't read the back book; I've been swamped with reading student essays. But my back is doing quite well, so maybe just your recommendation helped. :-)

Of course childbirth and abortion are not comparable experiences. My point was only that both trigger serious hormonal recalibration.

The best evidence we have for pre- and post-Roe abortion rates is that the U.S. birth rate remained steady - which suggests that the number of abortions cannot have changed dramatically in the short term. What *did* change: Maternal mortality - which includes abortion deaths - dropped precipitously.

John Pine said...

The great respect that men had for women in the nineteenth century and before was, I think, partly due to women facing as much danger in child-bearing as men did in going to war - it's ironic that the danger shortly before 1973 was more in botched abortions than in actual births.

I have a woman friend who thinks it highly inappropriate that I should think about this subject at all - I should leave it to women (which is Barack Obama's policy).

But short of parthenogenesis there is always a man involved in these unwanted pregnancies somewhere, however obscurely. And I can't get it out of my head that killing babies is wrong.

A seven-year-old I used to teach called Sara, one day abandoned her complicated long-division boards which is every Montessorian's daily fare and came to me with a picture she had somehow got hold of. It showed an aborted foetus thrown in a surgeon's soiled-linen bin.

"Look!" she said. "They threw him in the BIN! Why did they throw him in the BIN? They shouldn't have thrown him in the BIN!"

Adults go to their Senators or their Members of Parliament to right wrongs. Sara came to me. I write as Sara's representative. And I note that the legalisation of abortion resulted in a doubling of the abortion rate within six years.

sharona said...

"Look!" she said. "They threw him in the BIN! Why did they throw him in the BIN? They shouldn't have thrown him in the BIN!"

Way to make an emotional appeal there, Mr. Pine. Sara would also probably be outraged by euthanasia of kittens and puppies, but does that mean that we should turn all of the unwanted pets loose, or worse, cage them for short, disease-filled, unloved lives?

Or consider adoption of children - I was horrified at that age by the thought that a mother could *give up* her child, but it is clearly a social good in some cases.

There are bigger issues involved (such as a woman's autonomy, or the domestication of animals and city life) that a 7-year-old does not understand, and I feel that it is dishonest to use her naive remarks as your argument.

Sungold said...

Sharona, you are so right that this is a complex issue. We adults struggle with it; a 7-year-old is not in a position to understand its complexity. Thanks for visiting and weighing in on this.

I would just add, John, that men did not consistently respect women before the 20th century. You've been reading my blog long enough to be familiar with some of my historical posts. Women enjoy more autonomy, rights, and respect today than at any time in human history.

I for one would not like to journey back to ancient Babylon - where I'd either be a wife with little freedom, or a prostitute or concubine. Nor would I care to live under the British Contagious Disease Acts of the late 19th century, under which women suspected of prostitution could be imprisoned if they refused to submit to a forced vaginal exam.

If we're going to argue from history, let's not be ahistorical - and let's not rely on platitudes and tired stereotypes.

Sungold said...

And one more thing: Today is Thanksgiving in the United States. I'm done responding to you on this thread, John. I'm sure you'll find another opportunity to weigh in again, soon.

John Pine said...

Yes Sharona, but sometimes a child can cut through all the scholarly processing and see what is blindingly obvious. Sara didn't even know what we know, that sometimes the foetus in the bin survives the abortion and goes on wriggling for over an hour.

Just because one feels emotion about this, it doesn't make it invalid or untenable as an argument against abortion. It is dastardly to cause suffering - to kill - without any risk to oneself. It is simply being done for the tardy convenience of the parents. We should develop a way of life which educates and warns our children not to follow a path which leads to abortion. Each generation is being asked to discover it all for itself. This is much too serious a matter for learning by discovery.

Autonomy is no virtue in a totally interdependent society.

As for pets, they should receive kindness too: kindness should be a blanket policy in a civilised world. Children brought up to be kind to pets become kind to humans.

John Pine said...

(There is a time delay which caused my post to go up before I read yours, Sungold) Yes, I know history can prove almost anything. Let's just say that I can remember numerous men in my father's generation (including my father) who had a tremendous respect for women...and I project that back into history and know how dangerous it was in Victorian times for a woman to have a baby. I think that must have something to do with it. Cruelty as you said yourself is found on both sides. And talking of ancient Babylon, that was where thousands of infant skeletons were found buried in jars as a result of infanticide.

John Pine said...

Oh, and Happy Thanksgiving!

Sungold said...

Thanks, John. My mom used to have an English boss whose standing joke was that for the British, July 4 was Thanksgiving Day because that's when they could celebrate those pesky Yanks going their own way. :-)