Legal Commentary

Health Excepted, Health Accepted: Abortion, Health, and Law

By Jack M. Balkin

Judith Resnik & Reva Siegel

What is the relationship of health and abortion in law? How do the responses to this question change as one moves through various historical periods, from states to the national level in federations, or from the domestic to the international arena? Does conceiving (pun intended) of abortion as tethered to women's health result in more authority, autonomy, equality, or safety for women -- or less?

When contraception and abortion were legal in England and the United States, the banner of health provided arguments for their criminalization. Once contraception and abortion were criminalized, health became one of the justifications for regimes of partial decriminalization that allowed conditional access to methods of controlling fertility. For example, doctors and midwives who could demonstrate a patient?s health-based need for a "theraputic" abortion sometimes had defenses to criminal prosecution. ?Health? similarly justified immunities for those who sold condoms to men.

Roe v. Wade reflects both these traditions: in Roe, ?health? offers reasons for regulation as well as for exemption from regulation. Roe recognizes, in the second trimester of a pregnancy, the state?s interest in regulating abortion to protect maternal health, and in the third trimester, the state?s interest in regulating abortion to protect potential life -- so long as government allows women acccess to abortions necessary to protect their lives or health.

Legal systems other than the United States take women's health as a relevant part of the discussion of rights to abortion and its decriminalization. Abortion and health are connected in decisions from the Supreme Court of Canada, Germany, Portugal, Spain, the European Court of Human Rights, as well as in some countries' implementation of what they understand their obligations to be under the U.N. Convention against All Forms of Discrimination against Women (CEDAW). Abortion sits inside the debate within the the European Union about whether to have rights cross-borders to medical treatment. Furthermore, many texts of constitutions of nations, of the states within the United States, and of transnational conventions include protections for the health, welfare, and wellbeing of people -- although in some instances these documents have not been read to impose affirmative obligations on governments.

Developments in jurisdictions where health claims have provided a pathway to liberalization might suggest that health works as a "one-way rachet," giving women more access to abortion. But one cannot reliably assume that health provides a one-way street to abortion liberalization. In the nineteenth century, when the common law permitted contraception and abortion, advocates invoked health as a reason to criminalize birth control practices. Today, proponents of criminalization once again make arguments that abortion harms women's health as they invoke medical and psychological characterizations of abortion as a source of injury to women, encapsulated in what they call "Post-Abortion Syndrome" -- or "PAS."

Further, every claim of health is itself a potential site of struggle. The 2007 decision in Gonzales v. Carhart illustrates this point. Seeming to depart from prior precedent, the Court upheld a federal statute restricting certain methods of performing later-term abortions despite the fact that, on its face, the law made no exceptions for abortions to protect a woman's health and allowed only those needed to protect a woman?s life. Congress had been told by medical professionals that the procedure was sometimes medically-necessary, a position also attested to in court. Appearing not to credit these claims, the Court was nonetheless careful not to foreclose them: the majority expressly recognized the possibility of an "as applied" challenge to the statute by those who needed to use the banned abortion method, but did not explain who was entitled to assert this claim, when and how they would assert it, or the standards by which their health claims were to be assessed. For our purposes here, Carhart illustrates ambiguities in law?s claims about health: is health a legal/political procedure, a medical judgment, and/or a judgment by pregnant women?

Hence, it is time to examine more closely health's work in the law of abortion and its impact on women's autonomy, authority, equality, standing, safety, and welfare.

-- Health enables law to move in both directions, functioning as a reason for restricting fertility control and a reason for exempting persons from such restrictions.

-- Health ought to provide at least some women, under some circumstances, access to abortion. Women die in child birth around the world, with rates varying in important part with the distribution of health care services. The claim to resources to support or end a pregnancy in health might be part of citizenship rights or an independent right. In societies that consign women to live without sufficient resources to sustain themselves and their pregnancies, women?s health may provide justification for a broad right to abortion.

-- Recognizing the relationship between abortion and health can be a way of universalizing rights to abortion under ?medically indicated? conditions. This claim rests on the authority of professional medical judgment ? which supplies standards independent of the nation-state. A professionalized understanding of health could spark the de-nationalization of some aspects of the "right" to abortion and establish baseline conditions under which nations must make abortion available.

-- Health justifications can also facilitate movement toward women's autonomy. Health provides a reason to give women more decisionmaking power when pregnant. Yet if "health" is defined by doctors, legislators, or judges, it does not put women fully in charge -- or at least it appears not to put women fully in charge.

-- Health could thus be an example of what Meir Dan-Cohen described as "acoustic separation": law declines to be frank in what it does and instead meets some social need by speaking differently to different audiences. Authorizing abortion for health reasons may provide a society a way to give women agency without acknowledging that it has enabled women to postpone or to avoid motherhood. (In all of the 19th century English novels, it was only in Chapter 10 of George Elliot's Daniel Deronda that a woman said she had not wanted to become a mother.)

-- To the extent that "health talk" serves as a first way to talk about entitlements, it can be a vehicle for women gaining authority as well as for decriminalizing abortion. Health, unbounded, so to speak.

-- Just as health may cover grants of discretion to women, so too can it shroud the protections it provides for sexual expression. Health can de-sex abortion by obscuring abortion?s role in enabling sexual expression of men and women.

-- But providing abortions based on women's health is not the equivalent of providing control over decisions about childbearing based on women's equality, autonomy, rights to sexuality, or citizenship. If medical professionals or government retain control over what counts as ?health? in decisions concerning fertility, then women?s wellbeing, women?s authority, and women's ability to plan for the future are constrained. "Health" -- if defined by doctors (or legislators, or judges) does not put women fully in charge.

-- To put women fully in charge of childbearing decisions requires law that respects reasons of wellbeing, autonomy, and equality along with, or in lieu of, "health." These criteria are also important anchors for reproductive rights because of health?s semantic instability as a justification for the regulation of reproduction ?- its susceptibility to being flipped into a justification for paternalistic control of women.

Three conclusions at this stage are thus in order.

1) Health is a "threat" and an opportunity for those who support and those who oppose pratices of fertility control.

2) In many jurisdictions around the world, health is coming to be understood as an index of social standing and a marker, when absent, of a lack of citizenship of women. Abortion rights may nest inside this analytic that understands health as an independent right and a barometer of other rights.

3) Talk about health in conjunction with abortion remains, however deeply entangled in confusion about women?s citizenship ? fraught with ambivalence about women's agency, sexuality, power as mothers, and authority in spheres outside of motherhood. Health thus provides a "safe" and a "dangerous" space as the struggles of women as mothers/mothers-to-be/nonmothers continue, in and out of law.

Full post as published by Balkinization on September 22, 2008 (boomark / email).