Why Safe & Legal Abortion Matters to You
(why access to abortion matters to everyone)
by Pam Green, © 2016
part 2, caselaw discussions
Why does continued legality , safety, and practical availability of abortion matter to everyone ? Even to people who believe they would never ever under any circumstances need to utilize this themselves ? Even to you , the die-hard Anti-Choicer.
Here are the Supreme Court cases that give hints that if government is allowed to infringe a woman's choice as to abortion by putting obstacles against abortion and / or by rules that favor childbirth over abortion, the government could equally well make rules that favor abortion over childbirth . One rationale for doing so would be that slower population growth or negative growth would be desirable. More ominously, the rationale would be to reduce the size or proportion of some sub-set of the general population.
If you want to safeguard your own right to start and continue your own pregnancy, ie to try to produce a live-born child, you had better as vigourouly safeguard other womens' rights to abort their own pregnancy (and to prevent pregnancy from beginning).
Please go back to part one, if you haven't read it first. That part deals with issues already present. This page is just a supplement and hints at possible future issues, based on past precedent.
Why Safe & Legal Abortion Matters to You
(why access to abortion (& contraception) matter to everyone)
by Pam Green, © 2016, 2017
if the government can over-rule a woman's choice to abort, it can also over-rule her choice to give birth
if government can prohibit or limit or not fund abortion, it can equally mandate (require) or encourage abortion or fund abortion but discourage or NOT fund pregnancy care and childbirth
In the aftermath of Roe v Wade, a number of cases reached the U S Supreme Court concerning whether it violated the Constitution if a state government or the federal government chose to provide funding for pregnancy care and childbirth care but did not provide funding for abortion. Those cases decided that (a) this was not discrimination based on sex , thus the law needed only to have a "rational basis" and (b) that it was "rational" for a government to decide to show preference for increased births , thus higher population growth.
Now in 2017, or eventually, governments may well realize that increased population size is NOT desirable, indeed that reduced size would be desirable, and therefore "rationally" choose to provide funding for abortion (and also contraception) but not provide any funding for childbirrth and possibly also not for pregnnancy care.
note : even worse, the government might decide that reduction of the size and proportion of one or more categories of people within the over-all population would be desirable. The 14th Amendment prohibits discrimination on the basis of race, color, or previous condition of servitude; such categories are "suspect" and discriminations must be justified by "compelling reasons" and must be "narrowly drafted" to accomplish that reason. The Supreme Court has never declared "sex" as a "suspect" category, but has recognized it as one that requires more than merely "rational" justification (largely because of a series of cases in which a law disadvantaged male persons , thanks to the brilliance of Ruth Bader Ginsberg as an ACLU attorney). All other non-"suspect" categories require only "rational" justification for discriminatory laws, and the test of "rationality" is very easily met. The category of "poverty" or "indigency" has explicitly been ruled time and again to NOT be a suspect category. The category of "immigrant" or of "non-citizen" have never been ruled "suspect". In the climate of 2017, these are frightening thoughts.
As I write this , summer of 2017, Congress is debating how to "repeal and replace" (destroy) the Affordable Care Act. One of the key changes is to reduce federal support of Medicaid, reducing money available to the states to provide this care for their poorest citizens. It would be totally rational fiscally for a state to decide that spending on pregnancy prevention and termination is hugely less costly, thus a better bargain for spending their limited funds, than is pregnancy continuation care, childbirth care, and neonatal ICU and possibly lifetime care for any infants born with prroblems.
(note : discrimination in employment is covered by Title VII of the 1964 Civil Rights Act and later ammendments to that act.
(note : employer discrimination which disadvantaged pregnancy was also upheld by the Supreme Court until passage of the Pregnancy Discrimination Act ammending Title VII of the 1964 Civil Rights Act. note also that what Congress giveith, a later Congress can take away, and then the issues would go back to the courts)
some relevant Supreme Court decisions :
(This may be more of a short course in Constitutional Law than most readers will want, but it's here to augment my arguements in part 1 ,Why Safe and Legal Abortion Matters, which deals with current issues. )
cases relating to constitutionality of funding childbirth but not abortion
- Thornburgh (Gov of PA) vs American College of OB/GYN
issue : whether the state can require highly biased information to be presented to the pregnant woman. the decision re-affirms Roe v Wade, that the decision belongs to the woman, not to the majority opinion of society.. In a concurring opinion, in footnote, Justice Stevens points out "If federal judges all theState to make the abortion decision, presumably the State is free tto decide that a woman may never abort, may sometimes abort, or as in the People's Republic of China, must always abort if her family is already too large" (the boldface represents italics in the original).
- Beal v Doe (1977)
issue : whether state Medicaid program must include funding for "non-theraputic" abortions while fully funding the cost of "medically necessary services" for those meeting income eligibility. decision : this is not unconstitutional. dissent by Justices Brenann, Marshall, and Blackmun : that "elective" abortions are really "nescessary medical care" within the meaninng of Title XIX ,
- Maher v Roe
issue : whether a state can fund childbirth but not abortion.. decision : this is not unconstitutional, but in footnote it says "a state may have legitmate demographic concerns about its rte of population growth" which "could constitutea substantial reason for departure from a position of neutrality between abortion and childbirth". The footnote does not mention the obvious corollary that a state might well have a legitimate demographic concern about the need to stabilize or reduce population size and especially to reduce the proportion of indigent births that are likely to remain long-term indigent. The dissent of Justice Maarshall is especially worth reading in its entirity,
- Poelker et al v Doe
issue : whether a city may fund public hospital services for childbirth but not for elective abortion. decision : permissible.
- Harris v McRae <
issue : the federal Hyde Amendment denying federal Medicaid funding for abortions,including medically necessary abortions . decision : "the Hyde Ammendmentleaves an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abourtion as she would have had if Congress hadchosen to subsidizeno health care costs at all". (note that in 2017 some in Congress would prefer to subsidize no health care costs at all. Does this sound like "let them eat cake, sleep under bridges, and die in the streets"?). furthermore, "It is not the mission of this Court or any otther to decide whther tthe balannceof competing interests reflected in the Hyde Amendment is wise social policy" and further "We hold thatt a State that participatesin the Medicaid program is not obligated under Title XIX to continue to fund those medically necessary abortions for which federal reimbursementis unavailable unnder the Hyde Amendment". in dissent, Justice Marshall points out the many ways in which the Hyde Amendment must fail even the test of mere "rationality".The dissent of Justice Blackmun focues on the Hyde Amendment's prohibitiion of funding even where continued pregnancy will inflict severe and lasting harm to the woman's health.
cases related to burdens upon pregnancy
(almost all of these decisions are no longer controlling under the 1977 (effective Oct 1978) Pregnancy Discrimination Act Amendment to Title VII of the 1964 Civil Rights Act which forbids discriminations based on pregnanncy, but could come back into force if Congress were ever to repeal the Pregnancy Discrimination Act, thus restoring women to a secondary status financially.)
- Turner v Dept of Employment (1975)
issue : Utah rule that women in last 3 months of pregnancy are unffit for employment and therefore are denied unemployment compensation. challenged on basis of violation of family privacy. decision (summary judgement) : an unconstitutional violation of "the right to freedom of choice in matters of marriage and family". This seems to be the only burden on pregnancy case that was argued on the basis of family privacy. The cases described below were argued on Equal Protection and on sex discrimination / Title VII.
- Cleveland Board of Education v LaFleur(1974)
isssue : whether school district can impose unpaid maternity leave beginning at 4th month on teachers. decision : violates the "rationality" standard. the interesting point is that Justice Powell in his concurring opinion points out that "not everrygovernment policy that burdens childbaring violates the Constitution" " and Undoubtedly Congress could constitutionally seek to discourage excessive population growth by limiting tax deductions for dependents"
- Geduldig v Aiello (1974)
issue : California's system of disability benefits , funded by a tax on wages, which excluded coverage for normal pregnancy. decision : this exclusion is upheld on ground of fiscal rationality. . footnote " while it is true that only women can become pregnant, it does notfollowthat every legislative classification concerning pregnancyis a sex-based classification." The dissent by Justices Brennnan, Douglas, and Marshall points out that "dissimilar treatment of men and women on the basis of physical characteristics inextricablylinked to one ses inevitably constitutes sex discrimination" and argues that classifications based upon sex really are "inherrently suspect" and therefore should be subjected to "strict scrutiny" rather than mere "rationality".. (note : the possibility, not envisioned by the Court, that a F to M transgender person who retains ovaries and uterus can become a "pregnant man", does not really change this arguement.)
- General Electric Comany v Gilbert (1976)
issue : a private corporation's disability benefits program which excluded pregnancy. decision : this is not a situation of sex-based discrimination, only discrimination between pregnant women vs non-pregnant persons including non-pregnant women the decision also notes that "pregnancy is not a disease and is often a voluntarily undertaken and desired condition". in dissent Justices Brennan and Marshall note "Surely it offends common sense to suggest that a classification resolving around pregnancy is not at the minimum strongly "sex related". (to which I say "no shit, sherlock !") and in footnote the dissenterrs note that pregnancy is "not necessarily voluntary" as "a substantial incidence of negligent or accidental conception also occurs" (statistics are that roughly half of pregnancies in the US begin unintentionally). Dissenters also remark that pregnancy is the only excluded disability and that the plan does insure prostatectomies, vasectomies, and circumcisions, procedures that are limited to male persons. in a separate dissent, Justice Stevens notes that "it is the capacity to become pregnant which primarily differentiates the female from the male". (another "no shit, sherlock" observation). He does not specifically remark that it is the capacity to become pregnant that has been the historically most used pseudo-justification for denying rights and oppertunities to women, but surely he was well aware of this.
- Nashville Gas Co v Satty (1977, the Pregnancy Discrimination Act being already on the horizon, though not yet in effect)
issue : whether an employer can deny accumulated seniority to an employee returning from pregnancy leave. decision : this violates Title VII., noting that employees returning after disease or disability other than pregnancy retain their accumulated seniority. However the employer may disallow sick-leave pay for those on pregnancy leave. the concurring opinion points out that this employer required pregnant women to take leave, while leave was not required for other nonn-work related disabilities.
- Newport News Shipbuilding and Drydock v Equal Employment Opportunity Commission (1983)
issue : under the Pregnancy Discrimination act, must an employer who provides medical coverage to spouses of employees include coverage for maternity care decision : yes, because otherwise male employees would be disadvantaged (their female spouses not being fully covered) compared to female employes (whose male spouses would be fully covered). . The ruling explicitly rejects Gilbert, saying that the dissent opinion in Gilbert was correct. (Note : it's rare for the Supreme Court to explicitly reject one of its earlier rulings, though not so rare to carve out exceptions.)
Related topics :
- I will be writing an article "Who Will Raise the Unaborted Child" about the real issue in human life and reproduction. Namely that an infant will not survive without at least one adult or near-adult who is willing to raise that infant to an age of independance. An infant will not attain the qualities of normal personhood, cognizance, sociability, etc without at least one adult or near-adult who does an adequate job of raising that child. While society may be able to coerce a girl or woman to conceive and gestate a child to live birth, it is impossible to coerce anyone to be a loving and responsible and competent parent and child-rearer.
- and I will be writing an article about If Roe v Wade Were Gone, ie over-turned by the Supreme Court (post-Trump appointments) or by Constitutional Ammendment. This will include ideas on what Pro-Choice people could and should do to try to prevent this and how to respond if it happens. I might divide that into two separate articles, with the prevention & response portion titled "The New Lysistrata Rebellion".
- You Say that You Dislike Abortion : about all the things that those who say they oppose abortion should be supporting to reduce the need for abortion, ie to reduce unwanted and problem pregnancies. (guaranteed to outrage the Rabid Right and Anti-Choicers everywhere).