Abortion

A man’s right to choose

Is it fair that women have reproductive rights while men have reproductive responsibilities?

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A man's right to choose

In the wake of the Food and Drug Administration’s recent approval of the abortion drug RU-486, there were familiar arguments about a woman’s right to choose vs. the unborn child’s right to life, as well as speculation about ways in which the drug would change the terrain of the abortion wars. As usual, though, these discussions completely ignored one group of people who still have no legal voice in decisions about having — or not having — children.

They’re called men.

It is widely assumed by activists on both sides of the debate that legal abortion puts women on equal footing with men, giving them the same freedom to enjoy sex without consequences. Actually, when sex results in conception, the man and the woman find themselves on very unequal footing.

If she does not want to be a mother, a woman can end the pregnancy, with or without her partner’s knowledge. (It’s hard to tell how RU-486 will affect a woman’s ability to exclude the man from her decision; a drug-induced abortion at home may be more private and less invasive than surgery at a clinic, but it’s not easy to hide from an intimate partner.)

If she wants to carry her baby to term, a woman can force the father to pay child support — so, as lawyer Melanie McCulley points out in a 1998 article in the Journal of Law and Policy, he “does not have the luxury, after the fact of conception, to decide that he is not ready for fatherhood.” A woman also can have a baby and not tell the father, making a unilateral decision to give the child up for adoption or raise it on her own.

To some extent, this inequality stems from the obvious fact that a woman’s body is the vessel for gestation and the vehicle for birth. Once upon a time, biology colluded with cultural and legal male privilege to ensure that women generally paid the price for illicit sex. Scientific progress and the advancement of women changed that. Even as reliable contraception and legal abortion allowed women to control their reproductive fates, their ability to hold absentee fathers financially liable for their children was enhanced by new methods of establishing paternity enforced by friendlier courts.

“In the old days, a woman’s biology was a woman’s destiny,” writes Warren Farrell, author and men’s issues advocate, in the forthcoming book “Father and Child Reunion” (to be published in January). “[T]oday, a woman’s biology is a man’s destiny.”

The rhetoric of pro-choice advocates rarely mentions men at all, except to celebrate women’s freedom from male control over their reproductive lives. Anti-abortion rhetoric occasionally refers to bereaved fathers of aborted fetuses but more often invokes evil males for whom legal abortion makes it easy to seduce and abandon women, and who may even coerce women into having abortions.

Many men, and some women, see a very different situation — one in which women have rights and choices while men have responsibilities and are expected to support any choice a woman makes. “If she wants an abortion, he’s supposed to shut down all of his emotional bonding to the child,” says Fred Hayward, founder of the Sacramento, Calif., group Men’s Rights Inc. “Then, if she changes her mind and decides to have the baby, he’s supposed to turn it all back on and be a father.”

Hayward’s opinion is shared by Ron Henry, a Washington attorney (married with three children) who works pro bono promoting shared parenting by divorced and unmarried parents: The expectation that men will “switch” to support the woman’s change of heart, Henry says, is “a fundamental denial of men’s humanity, as if they just exist to make the woman happy.”

Activists aside, where do most men fit into the picture? Tellingly, very few studies have looked at the men implicated in unwanted pregnancies. The only book on the subject, apparently, is the 1984 volume “Men and Abortion: Lessons, Losses, and Love” by Drexel University sociologist Arthur Shostak and journalist Gary McLouth, based on a survey of 1,000 men in abortion-clinic waiting rooms and some in-depth interviews.

Most men in the survey reported that ending the pregnancy was a mutual decision, and only 5 percent didn’t want the abortion — though nearly half of the single and divorced men said that they had suggested getting married and having the baby. As for the roughly 50 percent of men who don’t show up at the clinics, various estimates cited by Shostak and McLouth suggest that while some fit the stereotype of the feckless runaway male, a significant percentage oppose the abortion or are too upset about it to come along. As many as one in six men are never told about the pregnancy or the abortion.

Some men who spoke to the Bergen (N.J.) Record a few years ago for an article on men and abortion keenly felt their powerlessness. Bill, a builder, was ecstatic when his fiancée became pregnant. Raised in a broken home, he dreamed of being the caring father he never had. His joy turned to grief when she told him she had miscarried — and agony when he came across a receipt from an abortion clinic.

“I cried for two hours, then went into my truck and just drove and drove for hours,” recalled Bill, who was 25 at the time. “I hadn’t even been given a chance to say yes or no to that baby … OK, she was the one carrying it, but I was never even consulted.”

When he confronted his 20-year-old fiancée, she told him she felt too young for motherhood. Somehow, they worked things out; in less than a year, she got pregnant again and assured Bill that she wanted to have the baby. Several weeks later, after a fight about buying a house, she went to stay with a friend for a few days “to clear her head” — and had an abortion. When her sister called to tell Bill, he screamed with anguish and rage, threw some lamps around and smashed all the framed photos of them together; after cleaning up the mess, he went to a bar and drank himself senseless. His fiancée actually returned, but they soon broke up.

“I couldn’t get over the pain,” said Bill. “I didn’t even date anybody for a year, and I lost all interest in sex. It was a long time before I could trust anyone again.” (At the time of the interview eight years later, he was happily married, with a stepson he had adopted and a baby on the way.)

Of course, men’s lack of reproductive rights has another side: being forced to assume the burden of unwanted parenthood, at least financially. In the eyes of the law, it seems that virtually no circumstances, however bizarre or outrageous, can mitigate the biological father’s liability for child support, as an overview of cases published in Divorce Litigation journal in 1999 shows.

Did the woman ask him to impregnate her and sign an agreement relieving him of any financial obligations? He’s still liable if she changes her mind. Was he underage and legally a victim of statutory rape? Makes no difference. (One such case, in Kansas in 1993, involved a 12-year-old boy molested by a baby sitter.) Did the woman have her way with him when he had passed out from drinking and brag to friends that she had saved herself a trip to the sperm bank? Tough luck, said Alabama courts. Did she retrieve his semen from the condom she had asked him to wear during oral sex and inseminate herself with a syringe? Yes, it’s a true story, and in 1997 the Louisiana Court of Appeals told the man to pay up, saying that a male who has any sexual contact with a woman — even oral sex with a condom — should assume that a pregnancy may ensue.

Even in less dramatic cases that involve sex between two consenting adults with no coercion or deception, there is a fundamental imbalance. A woman who gets pregnant in her freshman year in college can decide that she’s not ready to be a mother, or that having a child would disrupt her life too much. A man can find himself in the predicament of “A Dad Too Soon in N.J.,” a 27-year-old newlywed graduate student who wrote to Ann Landers that he got a young woman pregnant as a “very naive” 18-year-old and tried in vain to persuade her to have an abortion or put the baby up for adoption. The woman had recently filed for child support, and he was “burned up” about having to make payments he couldn’t afford for a child he had never wanted — a child that, as he saw it, the mother alone decided to bring into the world. (Predictably, Ann’s response was that “Dad” should quit whining and meet his obligations.)

Some argue that the law should treat women and men more equally. One proposed measure is “veto for fathers,” which is as simple as it sounds: No abortion can be performed without the prospective father’s consent. (Proponents of this idea do stipulate that a man who blocks an abortion must be willing to take full responsibility for raising the child.)

The language of the Veto 4 Fathers Web site strongly suggests a general anti-abortion agenda. But the idea is also endorsed by men’s and fathers’ groups, such as Fathers for Equal Rights and the National Coalition of Free Men (NCFM), which emphasize that their position on the issue of choice is distinct from that of the pro-life movement.

The NCFM’s “Declaration of the Father’s Fundamental Pre-Natal Rights,” adopted in 1992, states that “the prospective father has the fundamental right to participate with his partner-in-conception in any decision affecting the future of the fetus he helped create” and “a fundamental right of custody” equal to the woman’s.

A competing proposal, “Choice for Men,” leans in favor of the partner who doesn’t want to be a parent: It would allow a man to legally “abort” his parental rights and responsibilities within a limited time of being notified of the pregnancy.

“Ending paternity suits against men is the equivalent to legalizing abortion for women,” Hayward of Men’s Rights Inc., wrote in the Berkeley, Calif., alternative weekly the Spectator in 1992. McCulley’s article in the Journal of Law and Policy, provocatively titled “The Male Abortion,” endorses this idea and features a model statute under which an unwed father could petition for paternity termination.

So far, neither paternal veto nor male choice has much chance of becoming law. While polls show that at least two-thirds of Americans believe a husband should be notified before his wife has an abortion, and a majority may even favor a father’s right to block an abortion, the Supreme Court does not agree. In 1976, the court struck down abortion laws mandating spousal consent; in 1992, in Planned Parenthood vs. Casey, it also nixed spousal notification requirements as an “undue burden” on women seeking abortions.

In the 1980s, some men managed to obtain court injunctions or restraining orders barring their wives, ex-wives or girlfriends from having an abortion, but all these orders were thrown out by appellate courts. (Almost invariably, the women went ahead and had the abortion anyway while the injunction was still in force.)

As for “men’s right to choose,” the federal judiciary has yet to tackle this issue. Six years ago, the National Center for Men in New York announced its search for a plaintiff for a “Roe vs. Wade for men” lawsuit, an effort that attracted some media attention but ultimately fizzled.

Some men fighting paternity claims in several states have tried to argue, so far without success, that “forced parenthood” denies equal protection for men as long as women have the right to abortion. Peter Wallis, a New Mexico real estate broker, was equally unsuccessful in his suit against his ex-girlfriend, Kellie Smith, in 1998 for “intentionally acquiring and misusing” his bodily fluids by getting pregnant against his wishes; after a flurry of publicity, the case was tossed out. A few family court judges have sided with men who could prove that they were deliberately trapped — for instance, that the woman lied about using birth control — but none of those decisions survived on appeal.

If such a case does go to the Supreme Court, the equal protection argument is unlikely to hold up. It doesn’t take a brilliant mind to make the case that men and women are not similarly situated with regard to pregnancy and childbearing. Moreover, under prevailing constitutional doctrine, unequal treatment of the sexes, while generally presumed to be illegal, can be justified (unlike race discrimination) by a “compelling state interest” — such as ensuring adequate support for children already born.

Legal issues aside, do champions of men’s reproductive rights have a moral leg to stand on? Are they apologists for male fecklessness or male dominance, backlashers who resent women’s new rights, or cutting-edge fighters for equal justice?

The objection to paternal veto is easy to understand: A woman has physical primacy in every case. In surveys and interviews, even men who resent having so little say when it comes to dealing with a pregnancy generally agree that the woman should have the final word. (In Shostak’s abortion clinic sample, nearly 60 percent of men agreed that a boyfriend should have input in the abortion decision, and 80 percent felt a husband should have an equal role — yet, somewhat paradoxically, 60 percent agreed that if a wife wants the abortion, she should have it even over her husband’s objections.)

It is not necessarily a sign of anti-male bias, as men’s advocates contend, that a man’s ability to control his income and his labor isn’t accorded the same respect as a woman’s ability to control her body. In our culture, bodily autonomy is seen as a more fundamental value than property; that’s why chopping off an offender’s finger seems to us far more barbaric than stiff financial penalties or even forced labor.

And yet, in a broader sense, men’s autonomy is an issue. Advocates of choice for men like to cite a passage from a Planned Parenthood statement, “9 Reasons Why Abortions Are Legal”: “At the most basic level, the abortion issue is not really about abortion. … Should women make their own decisions about family, career and how to live their lives? Or should government do that for them? Do women have the option of deciding when or whether to have children?”

Substitute “men” for “women,” and it’s hard to deny that coerced fatherhood drastically curtails a man’s ability to make key decisions about how to live his life, including when or whether to have children with the woman he loves. Think of “A Dad Too Soon,” the young husband saddled with college loans, graduate school tuition, car payments and other expenses, and forced to give up a quarter of his earnings because he made a mistake as a teenager. (His admittedly one-sided narrative also suggests that the mother’s paternity suit was partly driven by vindictiveness: Having waited for eight years, she filed the claim days after his wedding.) Yet, in the eyes of Ann Landers and many others, he deserves only a stern rebuke. Pay up and shut up. You play, you pay. It takes two to tango.

Advocates of “choice for men” have a point when they charge that there is a certain hypocrisy in these declarations, now that the link between sex and procreation has ceased to be binding for women. “We are no longer being truthful when we chide the male defendant: ‘It took two to make the baby,’” writes Fred Hayward. “It might have taken two to conceive an embryo, but thanks to legalized abortion, only one person controlled whether or not the baby was made.”

Some maverick feminists agree with this view. Karen DeCrow, an attorney who served as president of the National Organization for Women from 1974 to 1977, has written that “if a woman makes a unilateral decision to bring pregnancy to term, and the biological father does not, and cannot, share in this decision, he should not be liable for 21 years of support … autonomous women making independent decisions about their lives should not expect men to finance their choice.”

Yet, by and large, feminists and pro-choice activists have not been sympathetic to calls for men’s reproductive freedom. “If there is a birth, the man has an obligation to support the child,” says Marcia Greenberger, co-president of the National Women’s Law Center. “The distinction with respect to abortion is the physical toll that it takes on a woman to carry a fetus to term, which doesn’t have any translation for men. Once the child is born, neither can walk away from the obligations of parenthood.” (Actually, a woman can give up the child for adoption, often without the father’s consent, and be free of any further obligation.)

Indeed, on the issue of choice for men, staunch supporters of abortion rights can sound like an eerie echo of the other side: “They have a choice — use condoms, get sterilized or keep their pants on.” “They should think about the consequences before they have sex.” (The irony is not lost on men’s choice advocates or pro-lifers.) Yes, some admit, it’s unfair that women still have a choice after conception and men don’t, but biology isn’t fair. As a male friend of mine succinctly put it, “Them’s the breaks.”

Is all this really about the “best interest of the children”? Single mothers are not required to seek money from the father, unless they apply for government benefits; many never file for child support, often because they don’t want the guy in their or the children’s lives. What’s more, when a single woman exercises her reproductive autonomy by going to a sperm bank, she denies her child any chance of getting a penny from the man who supplied his DNA, and the government won’t and can’t stop her.

Feminists often argue, correctly no doubt, that many pro-lifers are motivated less by concern for the unborn than by the belief that women who enjoy sex should pay a penalty for it. But maybe even more people today have a similarly punitive attitude toward men. In some comments I have heard, from both men and women, about the danger of “letting men off the hook,” the real fear seemed to be not that the children would suffer, but that the men would get off scot-free.

The willingness to liberate women but not men from the unwanted consequences of sex may stem partly from the lingering attitude, conscious or not, that sex is mainly for the man’s pleasure. It may also reflect the belief that men are irresponsible and thus more likely to abuse their freedom.

Some day, perhaps in our lifetime, science will add a new wrinkle to these issues. Reproductive technology will have advanced to the point where the fetus can be taken from the womb early in the pregnancy, with no more medical risk than an abortion, and incubated until it becomes viable. Will the law then allow the man to petition for custody of the unborn child if the woman doesn’t want it? Will he be able to sue her for child support afterward? Will many feminists argue that it’s an intolerable violation of a woman’s reproductive freedom that her child should be brought into the world without her consent, let alone that she should be stuck with the bill?

In the meantime, we have to deal with biological realities as they are. Given these realities, it may be nearly impossible to come up with a solution that wouldn’t be unfair either to men or to women. The current situation is clearly inequitable to men. But allow a veto for fathers, and it raises the disturbing specter of giving a man authority over a woman’s body. Allow choice for men, and some will find it galling that a woman who wants to avoid the burden of parenthood has to undergo surgery or drug treatment with unpleasant side effects while a man merely fills out some forms.

The argument for at least notifying the prospective father of an abortion (with a waiver for cases in which the woman has a reasonable fear of bodily harm from the man, or the pregnancy results from rape), seems compelling. Shostak, co-author of “Men and Abortion,” believes that a man should have an opportunity to “plead his case” to a woman if he wants her to have their baby.

There is also a strong case for providing some options for men to terminate their paternity. (At the very least, a woman who never bothered to let the man know that he was a daddy shouldn’t be able to hit him up for back pay 10 or 15 years later.)

Of course, “choice for men” could have complications beyond the issue of children’s economic welfare; for one, the man could later have a change of heart. While proposals for a “paper abortion” would make the procedure irrevocable, Fred Hayward concedes that “it’s a tough one,” since sometimes the child could clearly benefit from reestablishing a relationship with the father.

McCulley believes that a quick, early paternity termination would be better for the child than long, traumatic and often ultimately unsuccessful battles to extract money from an unwilling father. More intriguing, some proponents of men’s right to choose, such as Jack Kammer, author of the online book “If Men Have All the Power How Come Women Make the Rules,” argue that the option of declining fatherhood would make child abandonment less common.

“The notion of fatherhood as a trap, a burden, a yoke is strong in male culture,” says Kammer. “By making fatherhood a choice, we will allow it to become an obligation freely taken, not to be resented or avoided.”

And that, advocates for men say, is the real point — not men’s ability to control women or to desert children, but the ability to have input in decisions that profoundly affect their lives.

Maybe there is no good answer to the dilemma of male reproductive rights. Still, it is an issue that should prompt us to rethink some deeply held assumptions. It should make us realize that, if men who want a right to be released from their parental obligations seem callously egocentric to many people, that’s how women who want abortion on demand look to many anti-abortion advocates. It should make us ponder the fact that, while paternal desertion is often cited as evidence of male irresponsibility and selfishness, more than a million American women every year walk away from the burdens of motherhood.

Above all, perhaps, the issue of men’s reproductive autonomy brings home the fact that abortion can create a radical imbalance rather than equality between the sexes. For years, women have been sending a mixed message to men: Sometimes we expect them to be full partners in child-rearing, sometimes we treat them as little more than sperm donors, walking cash machines or bystanders. If men’s parental role is to be taken seriously, women need to assume a moral, if not legal, obligation to involve their partners in any decision about pregnancy and we all need to have a serious conversation about men’s reproductive rights — no matter where that conversation may lead.

Cathy Young is the author of "Ceasefire! Why Women and Men Must Join Forces to Achieve True Equality."

An overdue abortion access expansion

Will Congress let the military cover abortions in the cases of female soldiers who suffer rape or incest?

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An overdue abortion access expansionJeanne Shaheen, Dianne Feinstein and Patty Murray (Credit: AP/J. Scott Applewhite)

As political dares go, this one could hardly have been more blatant. “[Republicans] say they didn’t launch a war on women,” Sen. Barbara Boxer said Wednesday, “so we’re giving them a chance to walk this back.” She added, “Personally I say it’s a war on women, and the more they protest it the more I say it.” And Sen. Barbara Mikulski channeled ”Network” (or maybe old-school feminist rage): “We’re mad as hell and we’re not gonna take it anymore.” Even Harry Reid got in on the action, saying on the floor yesterday, “Republicans deny they’re waging a war on women, yet they’ve launched a series of attacks on women’s access to healthcare and contraception this year. Now they have an opportunity to back up their excuses with action.”

What spurred such rage? Nothing so incendiary as transvaginal ultrasounds or birth control — just the Paycheck Fairness Act, which passed the Democratic House in 2009 but fell to a filibuster by two votes in the Senate in 2010. It modifies the 1963 Equal Pay Act, strengthening enforcement and creating better mechanisms for wage transparency, and authorizes new research on the pay gap and a grant program to teach negotiation skills to women and girls. And while it probably doesn’t have a prayer in the House — if it can even pass this Senate — it manages to bring feminist-friendly legislation back on the table while doubling as a political tool to force Republicans into an uncomfortable corner.

Better yet, it gets to the subject Republicans have intermittently accused Democrats of obfuscating: the economy. As Sen. Patty Murray taunted in a press conference, “To those Republicans who claim to be so concerned about the economy, now is your chance to sign on, When women are not paid what they deserve, middle-class families and communities pay the price.”

Whatever happens with the Paycheck Fairness Act (likely nothing) or the dueling versions of the Violence Against Women Act, this week also saw a bill move that, if it makes it into law, would represent a rare, if tiny, expansion of abortion access on the federal level. That would be the Shaheen Amendment, named for another female Democratic senator, which allows female servicemembers — who suffer disproportionate levels of sexual assault — insurance coverage for abortion in cases of rape and incest. (Currently, the Department of Defense offers coverage only if the woman’s life is in danger, a much more limited policy than that of other federal employees.)

The amendment passed in the Senate Armed Services Committee’s version of the National Defense Authorization Act, with three Republican votes — Sens. John McCain, Scott Brown and Susan Collins. (Democrat Ben Nelson voted against it). Of course, if it manages to get through the full Senate, it has the anti-choice House to contend with. That it would be incredibly narrow says a lot about the state of reproductive rights in this country — after all, rape and abortion exceptions are a compromise that, while reflecting American public opinion, truly jibe with neither side’s actual worldview. But you have to start somewhere, and a time of heated political rhetoric about women’s rights is as good as any other.

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Irin Carmon

Irin Carmon is a staff writer for Salon. Follow her on Twitter at @irincarmon or email her at icarmon@salon.com.

“Not allowed to speak”: GOP silences D.C. rep

Rep. Eleanor Norton tells Salon how Republicans wouldn't let her talk at a hearing to ban abortions in her district

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House Republicans seem to have learned this much in the past few months: It looks bad to turn away a woman from a hearing on women’s health. So when D.C. congresswoman Eleanor Holmes Norton was denied the courtesy of testifying at a subcommittee hearing yesterday in her district on banning abortions after 20 weeks, Chairman Trent Franks, R-Ariz., suggested a compromise of sorts.

“He said that the congresswoman could, if she desired, sit on the dais of the hearing, but she would not be allowed to speak,” Norton told Salon after the hearing. She declined an offer she said “no self-respecting member” would accept.

“I certainly didn’t give them that optic,” she said drily.

Franks was technically within his rights – per the rules, the Democratic minority was granted one witness, D.C. resident Christy Zinks, who had an abortion at almost 22 weeks after the detection of a severe fetal abnormality. Still, as Norton pointed out, “there is a long tradition that goes back more than a century of allowing members to testify on a bill that may touch upon the district.” Nancy Pelosi also condemned the move.

In the testimony she wasn’t allowed to give, Norton says the so-called Pain-Capable Unborn Child Protection Act “is the first bill ever introduced in Congress that would deny constitutional rights to the citizens of only one jurisdiction in the United States, and it is the first bill ever introduced in Congress that would ban abortions after 20 weeks of pregnancy.” Last year, House Republicans managed to strike a budget deal that would deny the District of Columbia the right to use its own Medicaid funds to pay for abortions — another byproduct of the fact that D.C. is ultimately under congressional oversight and has only partial self-governance.

Seven states have followed Nebraska in passing manifestly unconstitutional bans on later abortions without health exceptions, on the scientifically suspect notion that a fetus can feel pain after 20 weeks. So far, pro-choice organizations have declined to mount a legal challenge, for complicated reasons.

Norton called it a “stalking horse” for the overturning of Roe. “We understand we’re the vehicle, we know we’re not the object of affection,” she said. “What they want from the Congress is a federal imprimatur to continue their march in the states, to say, even the Congress has voted for a bill to limit abortion to 20 weeks.”

The National Right to Life Committee has called the bill its “top congressional priority for 2012,” and will score members based on their votes, even though it likely has no chance of getting past the Senate – or the president. “They are serious about this bill,” Norton told Salon. “They’re not playing.”

That said, she thinks that despite Franks’ zeal, other House Republicans have lost their zeal for fighting what’s still being called the war on women. An earlier Franks bill, seeking to limit race- and sex-selective abortions, didn’t make it to the floor. And on the House version of the Violence Against Women Act, fiercely opposed by the White House and women’s groups, “They keep saying that they’re working on a way to reach an accommodation, and for them, that is unusual to say,” Norton said.

“They didn’t anticipate the way the war on women, as it is called, has boiled up to the surface,” Norton said. “And they’re trying to quell it somewhat.”

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Irin Carmon

Irin Carmon is a staff writer for Salon. Follow her on Twitter at @irincarmon or email her at icarmon@salon.com.

Abortions made public

States want more data on abortion patients. Zealots want their hands on it. Shame is the new anti-choice strategy

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Abortions made public (Credit: Cannaregio via Shutterstock/Salon/Benjamin Wheelock)

It was an “anonymous informant,” Operation Rescue claimed last week, after someone slipped them the April records of 86 women who were treated at Central Family Medical. The clinic’s lawyer was blunter. “It certainly appears to me that a crime was committed,” Cheryl Pilate told the Kansas City Star. Though the clinic (which performs abortions) had already reported a break-in to a locked dumpster, Pilate said it wouldn’t have contained patient records, which are shredded. The “informant” must have gotten the documents – containing names, addresses and details of procedures – another way.

“Our concern is for the privacy of these women and for their health and safety, for which Central Family Planning has shown very little regard,” said Operation Rescue’s Troy Newman – while posting photographs of the documents, partially redacted in black marker, online.

Antiabortion activists want to create the impression that one way or another, a woman’s decision to have an abortion will be discovered and exposed. The Central Family Medical incident is only the latest skirmish in a decades-long effort to undermine the privacy of abortion patients and harass doctors. In the early ’90s, for example, at least one group of clinic protesters printed on their signs the names of women seeking abortions that day, alongside “don’t kill your baby.” Such actions, while failing to make abortion illegal, have nevertheless managed to cloak it in a stigma that belies the fact that one in three women will have an abortion before the age of 45. Now, activists are seeking new ways to shame women who seek abortions, from requiring them to hand over personal information to actually hacking into their medical records.

Kansas has been ground zero for this: Last year, the Kansas Board for Discipline of Attorneys recommended that former Attorney General Phill Kline, a hero to Operation Rescue, have his legal license suspended indefinitely for mishandling the records from murdered abortion provider George Tiller’s clinic. (The Kansas Supreme Court will make the final call.) But the zeal to keep, and sometimes steal, abortion records casts a wide net.

In Texas, the state Department of Health is trying to implement a failed legislative measure that would require abortion clinics to report far more information about their patients to the state. In Florida, voters will weigh in on a ballot measure that would exempt abortion from the privacy clause in the state constitution, with the short-term aim being to strip minors of a right to privacy that would preclude parental consent. The U.K. recently jailed a hacker who stole and intended to publish the records of 10,000 women who visited the country’s largest abortion provider.

“It promotes the idea that abortion – or your privacy, if you have any – is not safe,” says Katie Stack, a graduate student and activist who spoke out about her abortion on an MTV special, “No Easy Decision.” That put her in close contact with the “online ministry” – the name antiabortion activists have given their efforts to reach women considering abortions through the Internet.

This has been the unstated goal of many activists in the antiabortion movement — and, sometimes, the stated one. “This might sound a little strange,” said antiabortion activist Lila Rose at the Value Voters Summit in 2009, but “if I could insist, as long as they are legal in our nation, abortions would be done in the public square, until we were so sick and tired of seeing them that we would do away with the injustice altogether … maybe then we might hear angels singing when we ponder the glory of conception.”

Rose won’t get her wish any time soon, but antiabortion activists are trying to use the Internet to have a similar effect. Rose was recently on a panel at the International Pro-Life Youth Conference about social media and pro-life activism, where topics included targeting women who are seeking information about abortion online, whether through Yahoo Answers or YouTube commenters – including figuring out where they live and recommending a crisis pregnancy center nearby.

“Privacy is very important to women who have abortions,” says Kate Cockrill, program director of the Social and Emotional Aspects of Abortion project, at the University of California, San Francisco. She points out that abortion is traditionally underreported even in confidential surveys, “which is a good indication that women don’t want to be associated with abortion experience in the eyes of someone who’s gathering data, even if it’s anonymous.”

Cockrill recently conducted a survey, as yet unpublished, that seeks to measure the impact of social stigma on women who’ve had abortions. It asked 641 women who had had abortions about 61 items, including questions about the fear people would gossip about you, judge you or hurt you, or the fear that you would lose an important relationship.

So far, she’s found that the women who experienced the most stigma were worried about being judged more than they were about being hurt or harmed, that they feared loss of social status and the ruining of their public identity, that they felt isolated and guilty, and that they feared community condemnation.

But as with other abortion restrictions, which create extra burdens in the supposed service of changing women’s minds, it’s not clear that anyone’s mind is being changed.

“Lots of women who feel a lot of stigma about abortions have abortion anyway,” Cockrill says. “If it’s not doing what antiabortion people want it to do, which is reducing the number of abortions, is it doing something on the other end, [after the fact]?”

Cockrill and her team are going to be using their scale in a study next year to look at the relationship between stigma and poor coping after abortion. Given that antiabortion activists have added to their obsessions the alleged harm abortion causes to women, there’s reason to believe that this is a self-fulfilling prophecy.

Women who have abortions, Cockrill says, “have a huge range of political views.” In fact, in her survey, only 62 percent of the women identified as pro-choice. (Seven percent identified as prolife, and 18 percent described their position as “mixed or neither.”)

“A lot of women don’t experience their abortions as a political act,” Cockrill says, partly an extension of the fact that they don’t see it as constitutive of their identity.

Whether it’s political rhetoric or individual ambivalence, these women are highly sensitive about whom they tell they had abortions. Sixty-four percent of the women in the study said they’d “withheld information about my abortion to someone I’m close to,” and 45 percent said they’d “lied to someone I’m close to about my abortion.”

They may not see it as political, but that silence functions as a vicious circle that antiabortion activists happily seize upon and promote. Cockrill says, “Some people say, ‘We need to have more people come out about their abortions.’ But it’s impossible to get more women to talk about their abortions if they don’t feel supported. And it needs to be on women’s own terms.”

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Irin Carmon

Irin Carmon is a staff writer for Salon. Follow her on Twitter at @irincarmon or email her at icarmon@salon.com.

Texas’ abortion enforcer

Fifth Circuit Court Judge Jerry Smith makes sure that the state's antiabortion legislation gets upheld

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Texas' abortion enforcerJerry Smith

Here is what the state of Texas considers “irreparable harm”: Continuing to provide Planned Parenthood with federal funds for the Texas Women’s Health program, which it has done for several years. Here is what it does not find harmful: immediately denying healthcare access to tens of thousands of women who have been going to Planned Parenthood affiliates for basic health services that aren’t abortions.

On Monday, a U.S. District Court judge didn’t buy the state’s legislation defunding Planned Parenthood, putting a temporary stay on the enforcement of the law. But within a day, there was another judge who found the argument persuasive: Fifth Circuit Judge Jerry Smith, last seen obnoxiously demanding that a female Justice Department lawyer ”submit a three-page, single-spaced letter by noon Thursday addressing whether the Executive Branch believes courts have such power.” (Kevin Drum memorably compared it to “a middle school teacher handing out punishment to a student because of something her father said at a city council meeting the night before,” and you wouldn’t have to look hard to find the sexist condescension.)

The District Court judge had written 24 pages on the constitutional merits, focusing on Planned Parenthood’s First Amendment rights of association. Smith issued two sentences two hours after the state’s petition, undoing that, and apparently buying the state of Texas’ argument that Planned Parenthood’s alleged “abortion promoting” mission justified discriminating against a qualified provider of healthcare.  (The clinics receiving WHP funding don’t even provide abortions, but other Planned Parenthood clinics do.)

In an election year, these posturings take on new meaning; by today, Planned Parenthood was proclaiming in a news release, “What would Mitt Romney’s America look like for women’s health care?  We need look no further than Texas,” and highlighting the policy similarities of Romney and Perry on women’s health. Romney, of course, has pledged to defund Planned Parenthood, which during the primaries became a consensus Republican issue. The last federal attempt to do so, last year’s Pence Amendment, nearly shut down the entire government, though Obama held the line — as he pointed out in a recent campaign video supporting the organization.

The presidential policies matter, but as we can see from Texas, the judiciary, prompted by state legislatures that are coming off a wave of abortion restrictions, is currently wielding the most power when it comes to women’s everyday lives, and the 5th Circuit in particular has been unrepentantly hostile to reproductive rights. When they failed with Pence, right-to-lifers turned to the states, primed by the 2010 election of even more anti-choice legislators and governors. In Texas, the conservative 5th Circuit has become a brick wall, previously allowing enforcement of the most extreme ultrasound law in the country, one that requires a woman to listen to the results.

Smith is a Reagan appointee, as is his fellow 5th Circuit conservative gadfly Edith Jones, who wrote the opinion in the ultrasound case, though if they’re feeling particularly emboldened lately, you can’t really blame them. After all, the Obama administration has shown little interest in prioritizing the judiciary, even after Bush’s ambitious effort to fill federal appellate courts with movement conservatives. A January Brookings Institution report showed that Obama has nominated fewer federal trial judges than his predecessors, even as a wave of judges retires. (Unprecedented Senate intransigence is a major factor in confirmations, but doesn’t explain the nominations.)  And Dahlia Lithwick has argued that “Obama, like Bill Clinton before him, has selected lower court judges more notable for their racial and gender diversity than their hard-left judicial orientation.”

All of this is to say that as long as states like Texas keep passing laws that punish women and stretch the boundaries of constitutional interpretation, to put it mildly, the buck is likelier than ever to stop at a judge like Jerry Smith.

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Irin Carmon

Irin Carmon is a staff writer for Salon. Follow her on Twitter at @irincarmon or email her at icarmon@salon.com.

The myth of the “morning-after abortion pill”

There's a reason why people mistake emergency contraception and abortion: The right intentionally confuses the two

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The myth of the (Credit: Shutterstock/Salon/Benjamin Wheelock)

It started around February, when Republicans were still eager to talk about contraception. The Obama administration, or so Mitt Romney charged in Colorado, was forcing religious institutions to provide “morning-after pills –in other words abortive pills — and the like, at no cost.”

It was, of course, a lie. Romney was conflating two different pills: emergency contraception, known as the morning-after pill, which prevents a pregnancy; and chemical abortion, or mifepristone, which ends a pregnancy of up to seven weeks’ gestation and isn’t covered under the new guidelines. Since both pills were marketed in the U.S. around the same time, even some pro-choicers have gotten confused. But Colorado happens to be the epicenter of people confusing them on purpose. It’s the birthplace of the Personhood movement and home to Focus on the Family, both of which have strategically called emergency contraception “abortion” on the scientifically unproven basis that they could block a fertilized egg from implanting.

There are a host of ironies here. Obama has earned the renewed support of reproductive-rights advocates by requiring health insurers to cover contraception, but the Center for Reproductive Rights is still taking him to court – with oral hearings being held this week before a New York federal court -– for overruling the FDA’s recommendation to lift the prescription requirement on emergency contraception for women under 17. That litigation has been winding its way through the system for over a decade, throughout the Bush-era politicization of the FDA, eventually resulting in a federal judge concluding that “the FDA repeatedly and unreasonably delayed issuing a decision on [the emergency contraception pill] Plan B for suspect reasons.” The FDA was ordered to explain why Plan B shouldn’t be available over the counter for girls 13 and up. When the Obama administration overruled the FDA’s recommendation to make it over the counter, U.S. District Judge Edward Korman suggested the Center for Reproductive Rights reopen its case.

“It seems to me that what we’re going through is a rerun of what happened before,” Korman remarked, referring to politics trumping the recommendations of medical professionals.

The Obama administration’s unspoken but unmistakable fear was of an election-cycle attack line that Michele Bachmann would use anyway: That teenage girls would be able to get Plan B from “the grocery store aisles next to bubble gum and next to M&Ms.” That was, in fact, an echo of the language President Obama himself used to invoke a highly unsupported bogeyman: that “a 10-year-old or 11-year-old going to a drugstore would be able to, alongside bubble gum or batteries, … buy a medication that potentially if not used properly can have an adverse effect.”

But there is another twist, so far mostly overlooked: Emergency contraception won’t be covered by insurance for everyone, since it’s available over-the-counter for those who can show I.D. proving that they’re 17 or older. They’ll still have to fork over around $50 a pop. But as long as girls 16 and younger need a prescription for the morning-after pill and they have insurance, it will be fully covered — effectively free. The same goes for women older than 17 who decide to jump through the hoops of getting a prescription, either for over-the-counter Plan B or the prescription-only generic and Ella versions.

As much as pro-choice advocates want to lift the barriers that make emergency contraception hard to get — because it’s more effective the faster you use it — one of those barriers, the prescription requirement, also mitigates another, the high cost. Said Adam Sonfield, a senior public policy associate at the Guttmacher Institute, of this catch-22, “It presents a tradeoff between cost and access.”

– – — – — – — – — – — – — – — – — – — – — – — – –

Part of the reason people get confused about emergency contraception and abortion is because lots of people are confused about the basic biology of pregnancy: specifically, that it doesn’t necessarily happen instantaneously and that sperm can live in the body for several days, during which time a woman can ovulate and an egg can potentially be fertilized and implant. Regular use of hormonal contraception prevents ovulation and the chance for fertilization; emergency contraception essentially works the same way except that it’s taken after sex, by which point ovulation may have already happened. But according to recent studies, there is no evidence that taking emergency contraception after ovulation and fertilization will stop the egg from implanting.

But the misinformation and misunderstanding have created a contradictory public health picture when it comes to emergency contraception. In some ways, it’s become more accessible. In 2010, the U.S. approved a longer-acting French variant of Plan B, known as Ella, and there are scattered experiments in convenient delivery, from a birth-control vending machine at Shippensburg University in Pennsylvania to a new bike messenger service in London, both of which caused minor news sensations. The annual “Back Up Your Birth Control” campaign has been promoting the line “EC=BC,” emphasizing that emergency contraception is birth control, not abortion — just in case that is a barrier for women who are considering taking it. And the Center for Reproductive Rights’ petition did manage to lower the age restriction from 18 to 17.

But there are more disturbing suggestions that misinformation is triumphing. A recent Boston Medical Center study found that many pharmacists were still often misinformed about the age requirement and were even more likely to wrongly refuse emergency contraception to 17-year-olds in low-income neighborhoods, where the rate of unintended pregnancy is higher. In Honduras, the Supreme Court upheld the criminalization of emergency contraception, which means women who use it could be jailed. Personhood initiatives, which oppose the morning-after pill, have so far failed in Colorado, Mississippi and Oklahoma, but they’ve introduced false doubts by providing even more opportunities for pundits and candidates to say “the morning-after abortion pill.”

It’s a problem that dates back decades: When, throughout the ’90s, the U.S. considered approving a French chemical abortion pill known as RU-486, it was widely called the “morning-after abortion pill,” including, often, in the New York Times. The distinction wasn’t pressed by the pro-choice community itself.  “At the time, the prevailing medical wisdom was that there is a continuum rather than a bright line between EC and mifepristone,” said Gloria Feldt, who was president of Planned Parenthood at the time, with the benefit providing more options for women who did not wish to be pregnant. “It was also assumed that a formulation of mifepristone would eventually be made for use as a true ‘morning-after’ pill.” The widespread belief, she recalled, was that a chemical abortion pill would “solve all the abortion debate problems and guarantee privacy.”

Another problem was that although doctors and non-professionals had been giving women high dosages of regular birth control pills for decades as a form of emergency contraception, the science of exactly how emergency contraception worked remained unclear. The medical definition of pregnancy remains “implantation of a fertilized egg,” but let’s say you believe, as the Catholic Church does, that fertilization itself creates a human life. Anti-choice advocates obsess over what would happen if a woman who took emergency contraception did happen to ovulate anyway and an egg potentially was fertilized, which is enough reason for some of them to call postcoital contraception “abortion.” They have claimed that hormonal contraception makes the lining of the endometrium inhospitable to a fertilized egg, constituting “murder.” Even the official packaging for Plan B, the single-step version of emergency contraception, suggests that “in addition” to blocking ovulation and fertilization, “it may inhibit implantation (by altering the endometrium).”

Except that we now know it doesn’t, even if you walk down the path of remote maybes, which requires you to believe that a zygote, which may not implant for unknowable reasons, has the same rights as a living woman who doesn’t want to be pregnant. As Princeton’s Kelly Cleland pointed out recently, “The science has evolved considerably in the last 13 years. Newer evidence, published since the Plan B label was approved, provides compelling evidence that levonorgestrel EC (LNG EC) works before ovulation, but not after.” The International Consortium for Emergency Contraception and the International Federation of Gynecology & Obstetrics also note that two new studies have shown conclusively that if a woman has ovulated and an egg has been fertilized, it’s too late for emergency contraception to work. They recommended that the language on the product labeling be changed.

Of course, scientific evidence has rarely had much place in this debate. In the meantime, even the most non-ideological news sources keep making the mistake alongside the ideologues. Last week, a furor erupted after the Associated Press reported that “Women seeking to take emergency contraception like the so-called ‘morning after’ pill would have to do so in the presence of a doctor under a bill before the Alabama legislature.” That is, until Erin Gloria Ryan from Jezebel read the actual bill and saw that it was, in fact, a law meant to limit chemical abortion, not emergency contraception. (A spokesperson for the AP said a correction was being prepared). “The confusion over this issue is probably one of the reasons emergency contraception hasn’t had as positive an impact as hoped when it comes to lowering the abortion rate,” wrote Amanda Marcotte at RH Reality Check. “If women think it is some kind of abortion-ish thing, they probably think taking it is a big deal, instead of thinking of it more like taking the pill, since it’s basically the same thing.”

But talk about moved goalposts. If ’90s-era advocates had hoped that the ability to end a pregnancy in the safety of your home with RU-486 — the actual abortion pill, not the morning-after one — would defuse the abortion debate, their more recent counterparts hoped to take it to the next technological level by providing “tele-med” abortions. They would involve doctors seeing a woman over webcam with a nurse practitioner physically present, helping women in remote areas with ever-dwindling options for safe abortions to access them. But four states have already passed requirements meant to undercut these options by forcing a doctor’s presence, and the bill the Associated Press misreported was aiming to add Alabama to the list. All in all, there have been fewer gamechangers, and more cases of one step forward, two steps back.

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Irin Carmon

Irin Carmon is a staff writer for Salon. Follow her on Twitter at @irincarmon or email her at icarmon@salon.com.

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