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

By Mutcherson, Kim | The Washington Monthly, January-March 2019 | Go to article overview

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


Mutcherson, Kim, The Washington Monthly


Her Body, Our Laws: On the Front Lines of the Abortion War, from El Salvador to Oklahoma

by Michelle Oberman

Beacon Press, 186 pp.

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?

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. …

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