Abortion

To be clear, the forced ultrasound battle isn’t wholly won — McDonnell’s statement only went as far as “asking the General Assembly to state in this legislation that only a transabdominal, or external, ultrasound will be required to satisfy the requirements to determine gestational age.” (Neither ultrasound is considered medically necessary before an abortion; transvaginal ultrasounds are considered more accurate earlier in the pregnancy, which is when most abortions occur.) But to understand what’s at stake here, you have to understand that until recently, forced ultrasound bills weren’t even that controversial, let alone radioactive, as today shows that they are for McDonnell, a Mitt Romney surrogate and vice-presidential hopeful.

Seven states already mandate an ultrasound before an abortion, and since the vast majority of abortions occur in the first 12 weeks, that means women are already being subjected to transvaginal wands right now. Many of those laws drew activists’ ire — and lawsuits — but nothing like what’s happened in the past week around the Virginia law. Not long ago, Mitt Romney reacted to a debate question about birth control bans as if it was the craziest thing he’d ever heard, and yet the country hasn’t stopped talking about birth control ever since, for which you can thank Rick Santorum and House Republicans. But if transvaginal probes come up in tonight’s debate and candidates are forced to take a position, we’ll know we’ve truly hit a tipping point. And we can thank an extraordinary convergence of pop culture outrage and reproductive rights activists around the words “transvaginal” and “rape” for it.

According to Critical Mention, a media monitoring service, there have been 186 mentions of a variant on the word “transvaginal” this year so far — with 132 of them in the last seven days. (There were 95 mentions in all of 2011, and we’re barely two months into 2012.) Amy Poehler returned to “Saturday Night Live’s” Weekend Update to use “transvaginal” as a punch line and snarl, “Don’t tell me what to do!” Last night, Jon Stewart turned “transvaginal ultrasound” into a song for a “Punanny State” segment. On “The View,” Joy Behar called the law “so frickin’ intrusive to a woman’s body” and compared it to the Taliban.

But it wasn’t just traditional bigger-stage outlets of liberal outrage, though even those have rarely gotten in the state-level abortion restriction muck. There was Gizmodo, not usually up in this sort of ladybusiness, announcing, “Here Is the ‘Dildonic’ Device Women Seeking an Abortion in Virginia Will Have to Endure.”  Said Meghan McCain to Rachel Maddow last night, “I’m pro-life but I’m not pro-vaginal probing,” adding, ”It scares me that a woman can be vaginally probed without her consent.” She said apolitical friends had been texting her asking what was going on with the law.

Soon, emboldened legislators, who had to postpone a vote because of a silent protest of hundreds of women outside the capitol, had been pointing out that the law would require that women “submit to involuntary vaginal penetration.” One delegate, urging Republicans to back off from the bill, said today, “It seems that there are a lot of people running from this bill,” adding, “Redemption is good.”

It helped that Virginia is a swing state convenient to D.C. media, and that conservatives had been so openly callous about the humiliating intentions behind the law, with more than one freely conceding that if a woman had opened her legs once, why should she care if the state gets into her vaginal canal for no medical reason? And this particular state-level overreach comes after the uproar over the Susan G. Komen Foundation defunding of Planned Parenthood and the indelible images of the all-male House panel debating denial of contraception.

The difference is, this is explicitly about abortion, not ostensibly consensus issues like birth control and breast cancer screenings. What changed? Pro-choice activists and progressive media took charge of the narrative. They started calling the ultrasound probe like they saw it. Between the word “transvaginal” — emphasizing that in most cases, this was not the “jelly-on-the-belly” kind — and the imagery of “state-mandated rape,” something finally stuck, as was clear in this AP report on the Virginia silent protest, in which one “Molly Vick of Richmond said it was her first time to take part in a protest, but the issue was too infuriating and compelling. On her lavender shirt, she wore a sticker that said ‘Say No to State-Mandated Rape.’ Just beneath the beltline of her blue jeans was a strip of yellow tape that read ‘Private Property: Keep Out.’”

The earliest mention I could find comparing the forced ultrasound to rape was Beverly McPhail’s May 7, 2011, Houston Chronicle Op-Ed, in which she declared, ”Uninvited penetration is rape, whether perpetrated by a man jumping out from behind the bushes or legislating from the state capitol.” McPhail, director of the University of Houston’s Women’s Resource Center, told me that she hadn’t seen the comparison before but was partly inspired by state Rep. Carol Alvarado taking to the house floor with a transvaginal probe. Alvarado didn’t talk about rape, but the discussion of penetration and the realization that this wasn’t the abdominal type inspired McPhail to look up the Texas rape statute. She discovered that not only did the transvaginal ultrasound technically meet that definition, ”our statute had a special provision that talked about coercion from public officials.”

It didn’t go far, McPhail said, but “I never quite called it ‘state rape,’ though, or used that term.”

On Feb. 15, RH Reality Check’s Andy Kopsa went there, headlining her piece, “State Sanctioned Rape,” and referring to Virginia, as well as similar measures in Texas and Iowa. Kopsa said traditional women’s organizations had been reluctant to make the comparison. “They are walking a thin line. Most of them have lobbyists working hard at defeating these kinds of bills every day in state houses around the country.  The fear is they will jeopardize any forward movement they have with other bills and politicians if they use the word rape.” Moreover, feminists, who use slogans like “rape is rape” and critique the use of the word in everything from right-wing commentary to comedy bits, are understandably wary of the word in a new context, even when a literal vaginal penetration is involved.

But some of the women’s groups are happy to have others make the comparison for them, Kopsa says: ”When I spoke to one women’s group in Virginia, the representative was almost giddy that I was writing an article that had ‘rape’ in the title about her state’s horrible bill.” By the next day, Slate’s Dahlia Lithwick wrote in a widely circulated story on the Virginia bill, “I am not the first person to note that under any other set of facts, that would constitute rape.” Soon, not only were progressive journalists comparing the procedure in the bill to rape — legislators in Virginia were.

“We are often caught behind in defining the debate,” says RH Reality Check editor in chief Jodi Jacobson, Kopsa’s editor on the piece who made a conscious effort to reframe the narrative. “Three years ago we should have had national conversations about birth control as a health consideration. now we’re playing catchup to religious freedom. This happens over and over again, when the framing is behind the politics.”

It’s as true in abortion debates as anywhere else. Andrea Grimes, a Texas feminist blogger and journalist, says, ”I made the decision to refer to the legislation as a forced transvaginal ultrasound bill as a political response to the sponsors’ repeated insistence of calling it an ‘informed consent’ bill.” That’s the preferred language of proponents of such laws, as if a woman isn’t already informed of what pregnancy means.

As to why Virginia could be different than Texas, where the law is being contested in court but is already being enforced,  Grimes said, “In my experience as a Texas feminist, even progressive people just kind of expect that Texas is shitty and backwards and oh well, that’s just what happens there with those poor, ignorant Red Staters so what can you do? But now we’re seeing that Texas … isn’t just the ignorant, backwoods exception to the rule — it’s the inspiration for an increasingly well-organized push to take rights away from women nationwide.”

And Jacobson says, “There’s just this confluence of factors where people are beginning to wake up to what’s going on. Part of it is that people are aware that it’s not just a culture war — it’s a war on women, evidence, health, and science.”

To begin with, a lack of contraceptive access simply doesn’t seem to be a significant factor in unplanned pregnancy in the United States. When the Alan Guttmacher Institute surveyed more than 10,000 women who had procured abortions in 2000 and 2001, it found that only 12 percent cited problems obtaining birth control as a reason for their pregnancies. A recent Centers for Disease Control and Prevention study of teenage mothers found similar results: Only 13 percent of the teens reported having had trouble getting contraception.”

Douthat also cited high abortion rates in blue states as a sign of liberal failure, as if abortion rates wouldn’t naturally be higher in places where abortion tends to be more available and less legally restricted, or as if women don’t routinely travel to more accessible locations to have abortions. Meanwhile, syndicated columnist Rich Lowry cited the same CDC study and claimed that “by any reasonable standard, we are one of the most lavishly contracepted societies in the history of the planet.” He added, “Of all the causes of the explosion in illegitimate births, limited access to contraception can’t be high on the list.”

First, a crucial note about how we talk about limiting abortions. Perhaps it is a sign of rhetorical defeat when the strongest final flourish Douthat can come up with in a column opposing contraceptive access is that abortion “isn’t a pretty sight” (very few medical procedures are) or that only 12 percent had trouble accessing contraception. As Guttmacher’s senior public policy associate Adam Sonfield pointed out to me this morning, that 12 percent who had problems obtaining birth control translates into about “68,000 abortions, or about a 5 percent reduction in the total number of abortions in the country. That’s not small change.”

But it’s also worth reiterating, as Adele Stan did this weekend and reproductive rights activists have been saying for years, that if you’re more than nominally pro-choice, you cede important ground by embracing the “safe, legal and rare” formulation that Douthat cited as a consensus. As the National Network of Abortion Funds tweeted,  ”Let’s reject ‘rare.’ If abortions are legal & accessible, number of abortions performed should = exactly the number of abortions necessary.” Contrast the following data points — the 87 percent of U.S. counties that lack an abortion provider, the financial barriers that right-wingers would like to increase with insurance bans, and the significant stigma around abortion — with the fact that almost half of all pregnancies are unintended. Suddenly, “rare” becomes more about a lack of real choice rather than choosing from an abundance of options. If, as a matter of public health policy, we are doing a terrible job of preventing unintended pregnancies, and some women want abortions and can’t have them, then the current rate is too low.

But even if you believe women have no right to terminate pregnancies in any circumstance, it requires serious, willful ignorance to argue that contraceptive access has nothing to with lowering the U.S.’ unusually high number of unwanted pregnancies, which is what we should really be talking about here. Douthat claims that ”if social conservatives haven’t figured out how to make all good things go together in post-sexual-revolution America, neither have social liberals.”

But, in fact, even “blue states” and “social liberals” have so far been unable to fully put into practice policies that might help make “all good things go together,” partly because of barriers put into place by Douthat and Lowry’s compatriots. That’s exactly what the Affordable Care Act guidelines they oppose are trying to do.

To a significant extent, contraception is already preventing unintended pregnancy, though not enough of them, for reasons I’ll explain. According to Guttmacher’s testimony last year in favor of the new Affordable Care Act guidelines:

The proportion using contraceptives among unmarried women at risk of unintended pregnancy increased from 80 percent in 1982 to 86 percent in 2002; this increase was accompanied by a decline in unmarried women’s unintended pregnancy and abortion rates over the same period, with the abortion rate for unmarried women falling from 50 per 1,000 women in 1981 to 34 per 1,000 in 2000.

Another study cited in the testimony found that improved contraceptive use among sexually active high school students was “responsible for 77 percent of the sharp decline in pregnancy among 15-17-year-olds between 1995 and 2002 (decreased sexual activity was responsible for the other 23%) and increased contraceptive use was responsible for all of the decline in pregnancy among 18-19-year-olds.” Even more recent data show teen pregnancy at a 40-year low.

But the U.S. still has the highest rate of unintended pregnancies in the developed world, and public policy has a lot to do with it, including lack of access to reliable sex education. (That same CDC study, after all, found that 31.4 percent of pregnant teens didn’t use contraception because they “thought they could not get pregnant at the time.”) Crucially, economic barriers to accessing healthcare can make all the difference. After all, for higher-income women, the rate of unintended pregnancy has declined since 1994 by 29 percent; unintended pregnancies among women living below the federal poverty line rose 50 percent in the same period.

This is about much more than just the average cost of birth control, although it is about that too. It’s about access to reliable information about sexuality and to the most effective forms of birth control, both of which conservatives are on record opposing. About half of unintended pregnancies and abortions occur among women using contraception inconsistently or incorrectly, Sonfield pointed out, but the same Affordable Care Act guidelines include education and counseling around contraceptive use and sexuality.

Public health experts are also hoping that the new insurance mandates will help women switch to the more effective forms of birth control they have told researchers they’d be interested in, like the IUD, the implant or sterilization. These have far lower failure rates — around 1 percent or less — than typical use of condoms, at 17 percent, or the pill, at 9 percent. (The one method the Catholic Church approves of, officially termed “fertility-awareness-based methods” has a failure rate of 25 percent.) Such forms may be better suited to women who have more disrupted lives and schedules, and are ultimately cheaper, but they’re more expensive upfront and harder to find providers for.

“It may be true that you can get a condom at a drug store,” Sonfield says, “but you just can’t come in and get an IUD.” In one 2004 study, a third of women said they would switch methods if they didn’t have to worry about cost, and if you give women the choice of any method, Sonfield says, two-thirds of them choose a long-acting method.

As for the claim that the United States is somehow more “lavishly contracepted” than anyone else ever (including those other industrialized countries with some form of universal healthcare), it’s tragically absurd. For one thing, the Title X program that some on the right, from Lowry to Foster Friess, have cited as proof that low-income women can get contraception is perennially under attack, either on political or budgetary grounds. “There’s certainly some irony there that politicians that have been foes of that program are trying to pretend that they support it as a way to attack a different policy,”  says Sonfield.

That public funding does a lot: The Department of Health and Human Services says that annually, it “prevents about 1.94 million unintended pregnancies, including almost 400,000 teen pregnancies. Preventing these pregnancies results in 860,000 fewer unintended births, 810,000 fewer abortions and 270,000 fewer miscarriages.” All in all, since giving birth is expensive (not to mention that unintended pregnancies tend to be associated with greater health risks for both mother and baby) taxpayers save $4 for every $1 spent on family planning. But it’s not enough; the services are only free for women who are at the poverty line, and from there it’s on a sliding scale.

Spacing out and planning pregnancies (or avoiding them altogether) improves the overall health of women and babies; the federal Institute of Medicine’s own research has indicated that unintended pregnancy is linked “to a wide array of health, social and economic consequences, from delayed prenatal care and poor birth outcomes to maternal depression and family violence to a failure to achieve educational and career goals.” The new contraceptive coverage guidelines could be the single most significant pro-active policy tool to combat those consequences, and it already represents one of the few positive national developments in expanding reproductive rights, in a time where effective defense is considered victory.

The evidence overwhelmingly shows that contraception is good for society, even if you don’t believe that women have a fundamental right to determine their own destinies. Of course, it helps to ignore the former if you don’t want the latter.

That was the case of Capt. Susan Struck, who had become pregnant in 1970. The Air Force demanded she either terminate the pregnancy — abortions were being conducted on bases back then — or leave her post. Struck, a Catholic, said she wouldn’t have an abortion but would put the child up to adoption without taking off any unusual amount of medical leave. Though she lost both at the district court and the circuit-court level, she appealed to the Supreme Court, which agreed to hear her case until Solicitor General Erwin Griswold persuaded the Air Force to simply waive her discharge and change the rule. Ginsburg was disappointed.

“I thought if Susan’s case came first,” she said — before Roe, which would be heard a year later — it would be preferable for the goals of women’s equality, because “her choice was birth. Solicitor General Griswold saw to it that we did not have that opportunity.” (This was the same Griswold who, as dean of Harvard Law School, asked the rare women in Ginsburg’s class how they justified taking spots that should have gone to men. Ginsburg later transferred to Columbia Law School.)

Instead, it would be Roe that would invalidate state abortion bans, an outcome Ginsburg said not only “moved too far too fast” but failed to make a women’s equality argument. ”If you read the decision [in Roe], it’s as much about the doctor’s right to recommend to his patient what he thinks his patient needs. It’s always about the woman in consultation with her physician and not the woman standing alone in that case,” she said.

Yale reproductive rights scholar Reva Siegel wrote in a recent essay celebrating Ginsburg’s brief in the Struck case — it was overlooked in part because she never got to argue it — that “Ginsburg and the women’s movement talked about pregnancy discrimination in a way that ties together pregnancy discrimination and women’s equality, and women’s equality and reproductive freedom, before the Court split them apart in cases such as Roe v. Wade, Frontiero v. Richardson and Geduldig v. Aiello. The Court made some fateful choices in those cases: to focus its sex equality jurisprudence on cases other than pregnancy, and so to develop its sex equality jurisprudence in isolation from its abortion jurisprudence.”

That was also true of many of the litigants at the time, Ginsburg said Friday, including the ACLU, which had been involved with Griswold vs. Connecticut, the case overturning a state contraceptive ban with a substantive due process argument that focused on privacy. Ginsburg preferred “women’s change to chart their own life course,” consistent with her idea that full citizenship meant the right to choose a life distinct from sex-role stereotypes.

But an abortion rights case involving a woman who wanted to choose to give birth would also have been consistent with the current reproductive justice framework, which is about bodily autonomy and a woman’s right to moral dignity and self-determination. And Ginsburg, who brought several sex-discrimination cases with male plaintiffs, clearly understood the power of framing these choices with potentially surprising reversals that showed how traditional gender roles limited everyone.

It wasn’t to be. Ginsburg called Struck to try and see if there was any way to press on with her case once the Air Force changed its policy. “‘My dream is to be a pilot,’ she said, but the Air Force doesn’t give flight training to women.’ We both laughed because in 1972 that was an impossible dream. That’s one sign of how much things have changed.”

During the question-and-answer portion, I asked Ginsburg about her comments last year that she likely couldn’t be confirmed today because of her women’s rights work. I asked if that made her concerned about the legacy on the bench of the issues she cared about.

“My dear husband once said that the symbol of the United States really isn’t the bald eagle,” she said. “It’s the pendulum.” She referred to contentious confirmations that preceded hers, and to the fact that despite being warned by the coaches for her confirmation hearings that she would have to answer for her ACLU work, it never came up. “The Senate was then determined to do it the way it should be done,” she said. “I think my biggest champion on the Senate Judiciary Committee was Orrin Hatch.” Justice Stephen Breyer, she pointed out, had a similarly uneventful confirmation hearing. “And then the divisiveness started up again.”

“I’m hoping that a saner view will prevail and we will get back to the process the way it should be,” she added. She didn’t address the part about the legacy.