In New Book, A Pro-Choice Author Who Says Abortion’s Legality Is Beside the Point

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Culture & Conversation Abortion

In New Book, A Pro-Choice Author Who Says Abortion’s Legality Is Beside the Point

Eleanor J. Bader

It's a strange opinion from an attorney and law professor. Because we know what happens when abortion is banned or inaccessible.

I may be wrong, but I don’t expect many raucous and hopeful celebrations of Roe v. Wade’s 45th birthday today. Since 1973, the procedure’s availability first surged and is now diminishing, leaving six U.S. statesKentucky, Mississippi, North Dakota, South Dakota, West Virginia, and Wyoming—with just one abortion provider. Worse, according to the Guttmacher Institute, 57 percent of American women live in states that the institute has classified as hostile or extremely hostile to abortion rights. Indeed, in 2016 alone (the most recent year for which figures were compiled), 18 states passed 50 new abortion restrictions, from parental consent and notification requirements to waiting periods between mandatory, often biased counseling and the procedure.

Sadly, the backlash to Roe and to the sexual liberation granted by abortion shows no sign of abating, and it is no longer only the pessimists among us who fear the complete rollback of abortion access and a return to the bad-old days of illegal and unsafe surgeries.

Attorney and professor Michelle Oberman, author of the new book Her Body, Our Laws: On the Front Lines of the Abortion War, from El Salvador to Oklahoma (Beacon Press), takes this possibility as her starting point. Oberman spent six years from 2010 to 2016 delving into what life is like when it is difficult or impossible to obtain a legal termination. The book zeroes in on El Salvador, where abortion is completely illegal, and Oklahoma, deemed the most “pro-life state in the union” by Americans United for Life. Her goal was to ascertain how restrictions affect actual women when they confront an unwanted pregnancy. It’s unquestionably timely.

Before I unpack the arguments presented in this slim volume, it is important to underscore that Oberman identifies as pro-choice. But while the book describes numerous individual situations with great compassion, its conclusions are muddle-headed, illogical, and dangerous.

Sex. Abortion. Parenthood. Power.

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Let me explain. Oberman writes that “for the most vulnerable girls and women, abortion’s legal status doesn’t make all that much difference.” I disagree.

One of Oberman’s most salient examples revisits the case of a Salvadoran woman mostly known by her first name Beatriz, whose 2013 pregnancy provoked an international outcry.

To recap: Beatriz suffered from an incurable kidney disease called lupus nephritis. Her first pregnancy, in 2011, almost killed her, but she was able to carry to term and successfully delivered a baby boy by cesarean section. When Beatriz became pregnant again two years later, doctors determined that the fetus lacked a brain and would not be able to live outside the womb.

Compounding this, medical experts agreed that Beatriz’s precarious health made the pregnancy extremely risky. After numerous consultations, her doctors recommended that she terminate it.

This proved impossible, however, because a 1998 law made abortion in El Salvador illegal—no matter the reason or the potential danger to the pregnant woman’s life or health of carrying to term. Lawyers were called in, appeals were filed, and a media campaign was launched. None succeeded.

Oberman outlines the gut-churning tragedy that unfolded. “When she was 27 weeks pregnant, Beatriz began having pre-term contractions. Her doctors knew they couldn’t let her risk going into labor. They performed a cesarean section, and Beatriz’s baby girl was delivered. Beatriz bled more than normal after the surgery, but she was readily stabilized. Her newborn daughter was placed on life support in an incubator, where she died, five hours after she was born.”

Oberman interviewed Beatriz and numerous members of her family for the book and learned that Beatriz was desperately poor, ill-housed, and had left high school at age 14. A few years later, she married a man who routinely beat her, and she bore visible scars of his relentless abuse. Even more troubling, Oberman learned that Beatriz’s second pregnancy was the result of marital rape.

It’s a heartbreaking and horrifying account that exemplifies why abortion should be legally available.

Startlingly, Oberman doesn’t make this argument. “It occurred to me how little difference it would have made had Beatriz been granted an abortion,” she writes. Abortion “would have offered no permanent relief from the things that made her life hard.”

Is she kidding? Color me a bleeding heart, but I see forcing Beatriz to deliver a child with no chance of survival—jeopardizing her own health in the process—as the height of callousness and cruelty. Would abortion have changed Beatriz’s overall economic, educational, or social standing? Would it have ended her husband’s brutality and made him treat her with respect and love? Of course not. Abortion is obviously not a cure for poverty, family contention, or violence; it’s a medical procedure that can sometimes lessen suffering and allow people to exert a measure of control over their reproductive and sexual lives and futures.

That’s why both domestic and international reproductive rights and justice movements demand government-funded abortion alongside a wide array of sociopolitical programs—free public education, affordable and available child care, subsidized housing, and comprehensive medical care among them.

Oberman seems oblivious to these movements and instead focuses only on how El Salvador’s draconian abortion ban has affected the country’s women more generally.

First, she notes that making abortion illegal has not stopped women from having them and seems genuinely shocked to report that financially secure Salvadoran women travel to neighboring countries where the procedure is legal while their less monied sisters utilize the black market to purchase abortion-causing medications. This should come as no surprise, especially in a book that crosses borders to tell a much-needed global story about abortion; we know that before Roe, U.S. women with economic resources traveled to Cuba, Mexico, and other countries to end unwanted pregnancies.

Then there’s the blatantly discriminatory class element in who gets prosecuted for violating El Salvador’s abortion ban. One of Oberman’s sources, Dr. Bernadette Rosario (a pseudonym), pointed out the disparity: “The right to confidentiality comes with a price tag. Patients at the private hospitals buy their privacy—no one ever reveals their secrets,” she said. This leaves the 80 percent of Salvadorans who rely on public hospitals for their health care far more vulnerable to arrest than their richer compatriots.

Oberman reports these facts, but does not conclude that this, in and of itself, makes abortion bans wholly indefensible. It’s a bizarre line of reasoning.

Secondly, Oberman explains that the law has turned doctors into law enforcers, a shift that has led Salvadoran women to be arrested—and some convicted—for violating the prohibition. This alone should enrage anyone who considers themselves pro-choice, but Oberman seems unfazed.

When she turns to Oklahoma, Oberman makes clear that this reddest of red states bends over backward to discourage abortion—forcing women to wait 72 hours between counseling and having the procedure, and imposing a raft of other restrictions on teens and the poor.

The impact of these measures is concrete, and Oberman cites the research of sociologist Sarah Roberts, who has shown that waiting periods have done little to stop women from ending unwanted pregnancies. Instead, they have upped the cost, forcing women to expend additional money on gas, bus fare, lodging, and child care—sometimes losing several days of paid work—in order to get to a clinic for the abortions they want and need. This seems like an ironclad argument against onerous abortion restrictions, let alone making it illegal, but Oberman again sidesteps this and opts to instead highlight the work of some of the state’s most active anti-abortion activists.

In addition to elected officials, Oberman interviews workers at Birth Choice of Oklahoma, a fake clinic or so-called “crisis pregnancy center” whose counselors strike her as kind, caring, and nonjudgmental. This left me shaking my head, but she still recognizes some attitudes that can most charitably be described as bunk. To wit: One staff member told Oberman that she believes the availability of legal abortion is responsible for a slew of social ills, including “violence in the world, weather phenomena, and Obamacare.” But, Oberman asked, what about a woman whose situation mirrored that of Beatriz? “I learned early on that if a woman is healthy enough to get pregnant, she’s healthy enough to go to term” was the reply.

If only.

These statements left me mystified, since misinformation—whether it’s the bogus link between abortion and breast cancer, recited in numerous states as part of the required pre-abortion counseling, or exaggerating the risks of abortion while minimizing the risks of bearing a child—has real-life consequences. The fact that Oberman did not bristle at or complicate the Birth Choice counselor’s ramblings—simply dropping them into her narrative—is troubling and misses the mark if it is meant to indicate objectivity.

Indeed, Oberman seems resigned to the incremental dismantling of Roe and unperturbed by the possibility that abortion could once more become illegal. “Even without Roe,” she concludes, “abortion will remain legal in many states around the country.” That’s true. But it will cause tremendous hardship to women who will have to upend their lives to have one.

The future of legal and accessible abortion is far from rosy, but as a foundational pillar of feminism, it is essential. Arguing, as Oberman does, that legality is of little consequence is foolhardy.

Other reviewers have called Her Body, Our Laws “sensible” and “fresh, balanced.” It’s none of these things. We know what happens when abortion is illegal: Woman put their health at risk, and they and their families suffer.
All told, the specter of illegality raises more than a few scary possibilities. So, as we light another candle to commemorate Roe’s 45th, let’s recommit to defending what we have and fighting like hell for what we need and deserve. In fact, it’s our only option.