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ESSAY
REFLECTIONS ON ABORTION: A ROLL OF
THE DICE IN LOUISIANA
Ruth Colker*
I. INTRODUCTION
T is hard to say anything new or different about the abortion contro-
versy. But I will make a modest attempt to develop a woman-centered
perspective on abortion, with particular application to the recently en-
acted Louisiana criminal abortion statute.^1 This Essay is deeply political
and personal, as it draws on my own reproductive experiences.
Despite claims by the conservatives that the Supreme Court's relaxing of
the abortion-privacy standard would make the abortion debate less rhetori-
cal,^2 there is no evidence of that result. I live in the heart of rhetoric-land -
the state of Louisiana - where I have seen the state pass legislation which
criminalizes nearly all abortions. In other essays, I have talked about the
need to develop "good faith" dialogue on the abortion issue. 3 A good faith
dialogue is one embedded in respect for the people affected by the issue
under discussion as well as the arguments made on each side of the issue. In
order for a good faith dialogue on the abortion issue to exist, pro-life advo-
cates must respect the well-being of women and pro-choice people must re-
spect the value of prenatal life. As I have discussed elsewhere, abortion
discussions rarely reflect such good faith. 4 In the case of the Louisiana crim-
inal abortion statute, I tried to write a brief in the Fifth Circuit that engaged
in good faith dialogue on the abortion issue. 5 While not denying the impor-
tance of valuing life in all its various forms, I try to show that the Louisiana
statute reflects enormous disrespect for women's well-being while not in-
creasing our valuation of life. Such disrespect, I argued, violates the sex-
***** Professor of Law, Tulane University.
- 1991 La. Acts 26 (codified at LA. REV. STAT. ANN. § 14:87 (West Supp. 1992)).
- See, e.g., Brief for the United States as Amicus Curiae Supporting Appellants at 21, Webster v. Reproductive Health Servs., 492 U.S. 490 (1989) (No. 88-605) ("As long as the various factions continue to look to the (^) courts, however, a constructive dialogue will be impossible."). 3. See Ruth Colker, (^) Abortion & Dialogue, 63 TUL. L. REV. 1363, 1363 n.1 (1989). 4. See Ruth Colker, Feminist Litigation:An Oxymoron? (^) - A Study of the Briefs Filed in William L. Webster v. Reproductive Health Services, 13 HARV. WOMEN'S L.J. 137 (1990).
- Brief for Black Women for Choice et al. at 13-17, Sojourner T. v. Buddy (^) Roemer, No. 91-3677 (5th Cir. filed on Oct. 18, 1991).
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equality component of the Fourteenth Amendment of the United States Constitution. In this Essay, I will not repeat all of my arguments to the Fifth Circuit. I will try to explain, however, how the Louisiana statute is a shocking example of the lack of respect for women's well-being that can be reflected in a so- called pro-life position. That lack of respect for women's well-being is basic to the statute's structure and substantive (^) position. More subtly, however, I will show how the statute profoundly reflects a man's rather than a woman's experience of pregnancy. Given the virtual lack of women's representation in the Louisiana legislature, the male-centered perspective should not sur- prise us. Because, as I will argue, that male-centered perspective is pervasive due to women's silence about their own pregnancies, I will try to break that silence in this Essay. I^ hope^ that^ other^ women^ will^ join^ me^ and^ discuss^ their pregnancies so that we can begin to remember rather than romanticize preg- nancy and make the true realities of pregnancy a part of the public consciousness.
6
II. LACK OF RESPECT FOR WOMEN
Four aspects of the Louisiana statute make it exceptionally regressive and disrespectful of women's well-being. First, the statute attempts to prevent termination of pregnancy "from the moment of conception." ' 7^ Because nearly all birth control devices, aside from the diaphragm and condom, op- erate between the time of conception (when the egg is fertilized) and implan- tation (when the fertilized egg implants onto the uterine wall), the statute would appear to ban most contraceptives. The statute would ban no contra- ceptive used (^) by men, but, interestingly, would ban the most popular devices used by women, increasing women's dependence upon men. Irrespective of how one feels about abortion, there is no excuse for preventing women from having access to safe and effective contraception. Second, the statute only provides for an abortion exception in the case where a woman faces imminent death, rather than substantial harm to her health, from continuation of her pregnancy. 8 Nearly every other state and western country that has passed an anti-abortion measure in the last century has included a health exception. 9 Louisiana's decision to include an immi-
- An excellent example of such a discussion of pregnancy is ADRIENNE RICH, OF WO- MEN BORN (10th anniv. ed. 1986).
- 1991 La. Acts 26 § 1 (codified at LA. REV. STAT. ANN. § 14:87 (West Supp. 1992)). 8. Section 1B(2) provides an exception when the "physician terminates a pregnancy for the express purpose of saving the life of the mother." Id. § 1 B(2) (codified at LA. REV. STAT. ANN. § 14:87B(2) (West Supp. 1992)).
- The recently challenged Pennsylvania statute has an overriding umbrella clause which contains a "medical emergency" exception. 18 PA. CONS. STAT. § 3204 (1991). The recently enacted Utah statute provides for an abortion exception in the event of rape or incest, grave damage to the woman's health, or grave fetal defects. UTAH CODE ANN. § 76-7-302(2)(1991). Similarly, the recently enacted Guam statute provides an abortion exception when two physi- cians determine that continuation of a pregnancy would impose a substantial risk to a pregnant woman's life or health. 9 GUAM CODE ANN. § 31.20 (1991). The European countries have also been consistent in protecting women's health when regulating abortion. See generally
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Finally, the statute exempts from its coverage women who self-induce
abortions. 14 No justification consistent with the statute's purported objec-
tive can explain this exception. Self-induced abortions are likely to destroy
both the woman's and fetus' lives. On the other hand, such an exception
supports a nineteenth century "pedestal" view of women by leaving them
free from the criminal law.
Louisiana purports to have enacted this statute to protect life. But as the
statute aptly says in its preamble, the legislature was only concerned about
life from the moment of conception until birth. Unfortunately, the alleged
concern did not extend to the period after birth. Louisiana ranks nearly last
in the United States in infant mortality, low birth weight babies, and lack of
prenatal care.' 5 Nevertheless, the Louisiana Senate rejected an amendment
to the abortion statute, by a vote of fourteen to twenty-three, that would
have raised the Medicaid eligibility^ for^ pregnant^ women^ and^ their^ children. '^
6
Rather than do anything meaningful to assist the women or children of the
state, Louisiana chose to impose compulsory childbirth upon women.
Louisiana has not voluntarily moved into the twentieth century in the area
of gender relations. It was not until 1979, under court order, that Louisiana
got rid of its "head and master" statute, thereby giving married women the
opportunity to control their marital property.' 7 The recently enacted Loui-
siana criminal abortion statute is unfortunately an attempt to return the wo-
men of Louisiana to their nineteenth century role in society.
In the Supreme Court's recent Webster^ v.^ Reproductive^ Health^ Services^ '
8
decision, Chief Justice Rehnquist suggested that women need not worry
about the states having increased power to regulate abortion. 19 Given wo-
men's numerical majority in society, he predicted that the Supreme Court's
recent, conservative decisions in the abortion area would not be treated by
state legislatures as "an invitation to enact abortion regulations reminiscent
of the dark ages." 20 Unfortunately, Chief Justice Rehnquist failed to com-
prehend that the Louisiana legislature would try to move the clock back to
the dark ages, endangering the lives of women. The Governor of Louisiana,
Buddy Roemer, vetoed the Louisiana statute, stating that it "dishonors wo-
men." 2 ' The legislature, however, chose to continue that dishonor by over-
riding his veto. Unless the federal courts choose to protect the lives and
health of the women of Louisiana, they will be facing much worse results
than dishonor.
Thus, we can readily conclude that the statute fails to respect women's
well-being. It does not purport to respect women, nor does it. As I have
- Id. § 1A(2) (codified at LA. REV. STAT. ANN. § 14:87A(2) (West Supp. 1992)). 15. See Statement of Senator Cleo Fields before Louisiana Senate Committee on Health and Welfare 49 (May **29, 1991).
- JOURNAL,** supra note 10, at 48-49. 17. See 1978 La. Acts 627, repealed by 1979 La. Acts 709 § 5 replaced by 1979 La. Acts 709, 710, 711; see also Kirchberg v. Feenstra, 450 U.S. 455 (1981). 18. 492 U.S. 490 (1989). 19. Id. at 521.
- Id.
- N.Y. TIMES, June 15, (^) 1992, at Al.
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REFLECTIONS ON ABORTION
argued elsewhere, such profound disrespect for women's well-being should violate the equality component of the Fourteenth Amendment of the United States Constitution.^ 22
III. WOMAN-CENTERED PERSPECTIVE
So far, I have relied on the kinds of arguments (^) that I made to the Fifth Circuit (^) in the Louisiana abortion case. I now turn to some more personal arguments that I did (^) not make in court but I believe also help demonstrate the (^) male-centered nature of the Louisiana statute. This more personal dis- course discusses the statute's lack of a woman-centered perspective. Before doing so, I need to offer a few caveats. (^) First, I worry about the kind of argument that I am now going (^) to make, because it sounds so biologi- cal. Biological arguments about women's physical autonomy should not (^) be the basis of a pro-choice perspective 23 because women (^) should seek group- based rather than individualistic arguments about reproductive (^) health. Moreover, I can hear my critics responding (^) that my personal arguments sound "essentialist" to the extent that they rely on biological (^) observations. And essentialism (^) has become one of the dirty words within the feminist movement. Before offering some personal observations, then, I need to ex- plain (^) why these observations are not overly biological or essentialist. Undoubtedly, the experience of pregnancy (^) has a biological component. More importantly, however, society has helped construct the experience of pregnancy in the way that it treats pregnant women. For example, nausea during pregnancy is a physical experience. I would argue that nausea be- comes hidden and trivialized by labelling it as "morning (^) sickness," thereby suggesting (^) that it only occurs in the morning; by expecting women to work during, at least, the first eight months of pregnancy; (^) and by telling women not to disclose the fact of their pregnancy until the end of the first trimester. In (^) talking about the physical experience of pregnancy, I try to show how society modifies and characterizes that physical experience through its rules, regulations, and attitudes. I am therefore talking about the social construc- tion of (^) the physical condition of pregnancy rather than the innate physical condition itself. As with most aspects of women's biology, (^) we have little idea what that biology would (^) be in the absence of social construction. The other problematic, essentialist aspect of my argument that follows is that it is highly individualistic. Certainly, not all (^) women experience preg- nancy exactly as (^) I have. My social class, for example, has greatly lessened the hardships of pregnancy for me. I have (^) been able to receive excellent medical treatment while working in a relatively nonstressful environment while pregnant. Elsewhere, I have discussed (^) the experience of pregnancy for adolescent females 24 and, therefore, understand how privileged my experi-
- See, Ruth Colker, An Equal ProtectionAnalysis of United (^) States Reproductive Health Policy: Gender, Race, Age, and Class, (^1991) DUKE L.J. 324.
- See Ruth Colker, Feminism, Theology, (^) and Abortion: Toward Love, Compassion, and Wisdom, 77 CAL. L. REV. 1011 (1989).
- See Colker, supra note 22.
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REFLECTIONS ON ABORTION
ful not to be burdened (^) with the responsibilities of raising a severely handi- capped child who would probably have (^) lived a short life filled with suffering. Because nature resolved those pregnancies in favor (^) of abortion, I did not have to make a morally painful decision about those pregnancies. After one of my spontaneous abortions, the doctor performed a "D&C," (^) a procedure that is strikingly similar to an elective abortion procedure. The difference, some people might argue, is that my D&C was performed on fetal tissue that was not potentially viable. But, had I chosen an abortion earlier in my pregnancy, it turns out that that abortion would still have been per- formed on fetal tissue that was not potentially viable. I was, in fact, not carrying (^) a potentially viable fetus. The state of Louisiana would allow a doctor to further abort a fetus after my body spontaneously aborted it but would not allow a doctor to abort it before (^) my body spontaneously aborted it. 28 From my own experience with spontaneous abortions, I would like to make a simple argument - (^) it is unfair and morally unacceptable not to give women the choice of electing an abortion in the first trimester of pregnancy. I have several justifications for this view. First, let's think about the first trimester of pregnancy. Society tells wo- men not to tell anyone that they are pregnant until the end of the first tri- mester when the high risk of spontaneous abortions passes. Believe me, the first trimester is terribly difficult for most women. Even if women (^) are not nauseous, they are extremely exhausted. (^) Moreover, if women are well-in- formed about pregnancy, they know that they have (^) a relatively high risk of spontaneous abortion, (^) estimated to be between fifteen and thirty percent, depending upon^ whom^ you^ ask.^
2 9
The result is quite convenient for a society that doesn't want to deal with the difficulties of women's pregnancies. Virtually no one knows that the wo- man is pregnant during the first trimester. If she has a spontaneous abor- tion, then she must suffer in silence. We can conveniently expect the pregnant (^) woman to keep performing her normal duties inside and outside the home during her pregnancy. In addition, most men and many women stay ignorant of the realities of the first trimester of pregnancy since they are rarely confronted with the pregnancy experiences of women during that time period. Thus, the high rate of spontaneous abortions is a relatively unknown fact. Now, let's re-examine those facts from the perspective of a woman who does not desire her pregnancy to continue. If Louisiana is successful (^) in con- vincing the courts to overturn Roe v. Wade,3 0^ then a pregnant woman will have (^) no real choices during her pregnancy. If she desires an abortion but doesn't want to break the law or cannot afford (^) to travel to another state to
- Section 1B(1) provides that a physician may terminate a pregnancy (^) in order "to re- move a dead unborn child." 1991 La. Acts 26 § IB(l) (codified at LA. REV. STAT. ANN. § 14:87B(1) (West Supp. 1992)).
- These estimates are based on discussions with three different gynecologist that I have seen during (^) the course of my pregnancies as well as general reading on the subject.
- 410 U.S. 113 (1973).
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procure an abortion, then her only "choice" is to wait and see whether na-
ture spontaneously aborts her fetus. For about one-fifth of those women,
nature will achieve her desired choice. For the remaining four-fifths, the
only alternative is bearing an unwanted child.
The state of Louisiana gives a pregnant woman who does not desire to
continue with her pregnancy the incentive to do whatever she can to induce
a spontaneous abortion, even if those steps might harm or endanger her own
life or future reproductive capacity. 31 And why is she forced to take those
steps? Because she is too poor to travel to another state where she can pro-
cure a legal abortion and she is not "lucky" enough to have experienced a
spontaneous abortion. The next twenty years of her life will be dramatically
affected by those fortuities.
Let us also think about this scenario from the perspective of the Supreme
Court's favorite abortion buzz phrase - potential life. If the Supreme Court
overturns Roe v. Wade and upholds the Louisiana statute, it will be because
the state is constitutionally entitled to value the potential life of the fetus
over the woman's right to privacy, equal protection, etc. But, in what sense
is a fetus actually potential life in the first trimester? Nature spontaneously
aborts more than one-fifth of all pregnancies. From the perspective of a
pregnant woman who is well-informed about reproductive health, there is, at
best, a possibility of life but not a real potential for life, until the first trimes-
ter is completed.
This last observation takes me back to my earlier remarks about the first
trimester of pregnancy. Society's conditioning of women to remain silent
about their first trimester of pregnancy and spontaneous abortions leads
most men to be entirely ignorant of those biological facts. That silence con-
tributes conveniently to a male mode of pregnancy which sees all pregnant
women as carrying potential life. In fact, one cannot be confident that wo-
men are carrying potential life until the fifteenth week of pregnancy. And,
for women over thirty-five, and especially women over forty, one cannot be
certain that they are carrying a potential life until the woman receives her
amniocentesis results at about week nineteen of pregnancy.
In Louisiana, we have four women in the state legislature - three in the
House of Representatives and one in the Senate. Two of these women were
elected to their positions in the last year. It, therefore, does not surprise me
that the legislature knows virtually nothing about women's reproductive
health or well-being. It does not surprise me that the legislature uses a male
model of pregnancy which denies the fragility of women's pregnancies for, at
least, the first trimester.
The ignorance and disrespect of the Louisiana legislature became more
obvious to me when I had the opportunity to debate a state legislator on the
Louisiana abortion statute at Tulane Law School. I kept trying to argue
from a woman-centered perspective, pointing out the numerous ways that
- A self-induced abortion is lawful under the statute. 1991 La. Acts 26 § 1A(2) (codi- fied at LA. REV. STAT. ANN. § 14:87 (West Supp. 1992)).
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