What the Abortion Debate Leaves Out

The pro-choice/pro-life framework overlooks the many hidden ways in which the law impacts women’s reproductive freedom. 

There may be no controversy more deeply rooted in U.S. politics than the fight over the right to abortion. The Roe v. Wade litmus test has become a familiar fixture of the Supreme Court confirmation process. And while most Americans believe in a woman’s right to terminate her pregnancy in most circumstances, Republican state legislators continue to crusade against it. Given the vociferousness of the debate about the legality of abortion, it’s striking that in her new book, Her Body, Our Laws, Michelle Oberman argues that “for the most vulnerable and marginalized women, abortion’s legal status hardly matter[s].” If abortion law is largely irrelevant to the women for whom it is thought to be most salient, then what are we all fighting about?

Her Body, Our Laws: On the Front Lines of the Abortion War, from El Salvador to Oklahoma
by Michelle Oberman
Beacon Press, 186 pp.

Oberman makes her case in a slim volume that largely consists of painful and illuminating stories from different theaters of the abortion war in the U.S. and around the world. She begins with the heart-wrenching story of Beatriz, an El Salvadoran woman whose 2013 case became a referendum on El Salvador’s abortion laws, the strictest in the world. About three months into her pregnancy, Beatriz learned that the fetus she carried had anencephaly, meaning that it lacked a brain and would die in utero or shortly after birth. Compounding this devastating diagnosis was the fact that her pregnancy was already a significant health risk for Beatriz because she was living with lupus, a long-term autoimmune disease. It would seem obvious that Beatriz need not risk her own health to carry to term a fetus that was destined to die. But El Salvador forbids abortion even when necessary to save the pregnant woman’s life. Despite her appeal to the Salvadoran government and the country’s Supreme Court, Beatriz was forced to carry her pregnancy for seven months, until her daughter was delivered by emergency C-section and died shortly after her birth. 

As Oberman speaks with Beatriz, she comes to know more about the woman’s life, including that she had attended school only until the age of fourteen, that her illness made it impossible for her to be employed on a long-term basis, that she lived with multiple family members in a small home in a remote area of the county, that her husband was physically and sexually abusive, and that her pregnancy resulted from coerced unprotected sex with her abusive spouse. Given these circumstances, Oberman is struck by “how little difference it would have made had Beatriz been granted an abortion.” Yes, it would have saved her months of suffering in the hospital. But a legal abortion would not have cured her lupus, made her husband less abusive, allowed her to move out of her mother’s home, or helped her find a well-paying job. “Beatriz’s case,” Oberman concludes, “meant more to the war over abortion than the abortion meant to Beatriz.” 

Oberman shapes the lesson of her book around an idea offered by law professor Cass Sunstein about the “expressive function” of law—the extent to which laws are written and passed not only to prevent certain conduct, but as a way for society to declare its values. Sunstein argues that “symbolic laws,” or laws that are primarily expressive, must be judged against their real-world consequences. In other words, if a law functions only as a symbol and does not forward the “norms and values it aims to promote,” then that law is a failure. By this account, Oberman argues, laws that forbid abortion fail. Oberman cites data that shows that making abortion illegal does not end abortion and, in fact, does not even reduce the number of abortions that take place in a given nation. Overall, she notes, rates of abortion are higher in countries with the most restrictive abortion laws. 

Further, where abortion is illegal, Oberman writes, health care providers can become complicit in enforcing the law against their patients, thus violating the basic tenet of confidentiality in the patient/provider relationship. In El Salvador, the government has pushed doctors to report cases where they suspect an abortion has occurred. Disturbingly, Oberman reports, in the “vast majority of cases, doctors cannot tell whether a woman has had an abortion or simply a miscarriage. Thus, their reports are based on hunches, rather than on medical evidence.” Consequently, women who have done nothing illegal get convicted of abortion-related crimes.

Oberman writes that her book is not meant to convince you that abortion should be legal. Instead, her goal is to “invite you to consider the ways in which abortion law matters—to encourage you to reconsider the utility of the terms of our debate, if not the debate itself.” She would have better served that goal, however, if she had provided readers with a fuller discussion of existing alternatives to the reductive pro-choice/pro-life dichotomy that dominates mainstream abortion politics. The understanding that marginalized women need much more than a law that makes abortion legal led a group of black women to create the movement for “reproductive justice,” which does not feature in Oberman’s narrative at all. Reproductive justice is a human rights–based framework that centers on intersectionality—the ways in which multiple aspects of identity, such as race and socioeconomic status, interact with sex to create complex systems of disadvantage or oppression, especially for people who have multiple marginalized identities. Reproductive justice focuses on the experiences of women who are the most vulnerable and marginalized.

The central tenets of reproductive justice are that women have the right to have a child or to not have a child, and to parent the children they have in safe and healthy environments. It positions abortion where it should be: as a part of, rather than the center of, a broader discussion about women’s reproductive lives. So, for example, reproductive justice advocates are concerned not just with the legality of abortion, but with repealing the Hyde Amendment, which makes it nearly impossible for poor women to get Medicaid funding for abortions; with increased access to social support for low-income women; with curtailing over-incarceration of people of color, especially black people; and with confronting environmental racism exemplified by events like the Flint water crisis. Legal abortion means little to women who do not have the money to get one. It is almost impossible to raise healthy and well-adjusted children in communities where significant portions of the population spend time in prison and where the basic human right of access to clean water is nonexistent. Reproductive justice recognizes that the pro-choice/pro-life debate must be couched within this larger conversation about women’s lives.

Though Oberman has a tendency to describe the pro-life and pro-choice positions in purely oppositional terms, her own reporting shows how reductive that frame can be. One woman who works at Birth Choice of Oklahoma, a faith-based center run by women whose goal is to dissuade other women from having abortions, tells Oberman that there are “two kinds of pro-life people. People who are pro-life and people who are antiabortion.” The women of Birth Choice offer sympathy and understanding to the women who come to them in the midst of struggling to make a decision about terminating a pregnancy. Their expressed goal is not to shame women into carrying a pregnancy to term, but to provide the support, economic and otherwise, that women who have abortions too often lack. Recognizing the need for more extensive services for pregnant women in crisis, the funders of Birth Choice also opened Rose Home, a place where pregnant women can be housed safely as they carry their pregnancies to term. Oberman writes that “the women of Birth Choice had aligned their moral compass with a keen eye to the needs of the most vulnerable women in society.” The same, of course, can be said of the many abortion providers who recognize that an unplanned or unwanted pregnancy is seldom the only issue with which their patients are grappling.

Had Oberman infused the lessons of reproductive justice into her book, she could have placed the many stories that she offers into a richer legal context. Law impacts what social services are available to a poor family. Law impacts what family planning services a poor woman can access. Law impacts the quality of the school system in a poor woman’s neighborhood. Law plays a role in whether a woman can retain custody of her children. Law is implicated in a woman’s ability to get a protective order against a violent spouse or partner. I would amend Oberman’s claim that law does not really matter to say instead that law matters in different ways, and that abortion law is only part of a larger web. “There is one war over abortion, and laws are the weapons with which it is fought,” Oberman writes. Her framing is only true if we reduce the abortion debate to a contest over whether abortion should be legal or illegal. These terms, as Oberman certainly recognizes, are the narrowest upon which to have this discussion. When one properly sees the abortion debate as part of a larger struggle for reproductive justice, the terms of that debate and the place it occupies in so many women’s lives become clearer.

Kimberly Mutcherson

Kimberly Mutcherson is vice dean and professor of law at Rutgers Law School, Camden. She studies issues related to reproductive justice, with a focus on assisted reproduction, abortion, and maternal-fetal decisionmaking.