Wednesday, December 9, 2015

History and Texas Anti-Abortion Laws Show How Futile and Dangerous Conservative Efforts Are

by Nomad

A new study in Texas about self-induced abortions underscores that truth that conservatives have long denied. Making something illegal won't make it go away and could have unintended consequences.


Republican leaders in Texas are jubilant about their attempts to close down Planned Parenthood clinics  in their state. When deciding to cut off Medicaid funding for the organization, Governor Greg Abbott led the charge even to the point of breaking federal law. The rush is on now to close down to remaining abortion clinics in operation. 
Planned Parenthood, as most people know, is not solely an abortion provider. It also provides valuable reproductive health care services for women. Inevitably, there will sooner or later be consequences for half-baked policy.

But then this is Texas where, when it comes to conservative bombast, there are no holds barred.Conservative crazy comes at a two-for-one price there. Republican president candidate Canadian-cum-Texan Ted Cruz called Planned Parenthood "an ongoing criminal enterprise."

JEB! couldn't understand why it was necessary to spend half a billion dollars for women's health issues at all. Apparently nobody has explained to JEB (the "smart" Bush) that women make up 50.8% of the population and 43.5 million of those women have children. These mothers gave birth to 95.8 million children. Somebody forgot to inform JEB that the health of women naturally has an impact of the children they have.)

Rep. Steve Stockman not long ago contributed his excuse for cleverness with a bumper sticker campaign which linked two seemingly unrelated issues close to the hearts of Texas right-wingers: Guns and fetuses.
The stickers read: 
If babies had guns, they wouldn't be aborted. 
This was matched with pro-choice signs that read: 
If my vagina could fire bullets, you wouldn't regulate it.
Who could possibly argue with logic like that?

The Risks of DYI Abortions
However, in the real world, there is not-at-all surprising evidence that in Texas, outlawing abortion doesn't stop the practice. A recent study involving women in the Lone Star state revealed that at least 100,000 individuals attempted to perform self-induced abortions.  Self-induced abortions is a non-specific term. It could be something like taking herbal remedies or poisons intended to induce a miscarriage.
Some of these methods are harmless, but also ineffectual. Others work more effectively, but can be extremely dangerous to the woman.
Some people resort to inflicting physical abuse (falling down stairs, blows to belly, jumping from heights) when they cannot find any other way in which to end an unwanted pregnancy. This is extremely risky for the woman and is often not effective in ending the pregnancy.
In all likelihood, that number is much higher, possibly as high as 240,000. That figure would make Texas the leader in rates of self-induced pregnancy terminations in the nation.
Considering the great danger these methods entail — especially as they cannot guarantee a safe termination — it is safe to say self-inducing abortion isn’t the preferred outcome for most Texas women. This is particularly evident when comparing Texas’ 22 percent to the estimate for self-induced pregnancies nationwide: Less than 2 percent.
Most of the women who induced their own abortions, the study also found, were Latinas. The reason for that is probably related to the religious-cultural stigma of unwed pregnancy, With all of its patriarchal roots, the Roman Catholic Church has historically opposed abortion and the Church in the Hispanic community still has a profound influence on the daily lives and morality.

Add to that, other factors such as limited access to birth control methods and sex education. Once a low-income woman finds herself pregnant, the problem becomes a much more practical one: to attempt to survive economic pressures of either having a baby that she cannot afford or an abortion that is impossible to obtain in the state.

(A pro-life organization called the results of the study "biased" and "extremely unlikely" They called the numbers "a gross exaggeration" On the contrary, they claim that the Texas laws have saved "more than 10,000 unborn babies lives so far by cutting the abortion rate 13 percent." Which I suppose ultimately comes down to a question of priorities between the lives of women or the lives of potential babies.)
 *   *   *
The results of the study simply demonstrates the facts that our grandmothers knew very well. When desperate, people will risk breaking the law even if it means risking their lives. 
The policy of criminalizing something that many people consider abhorrent or socially unacceptable must be carefully weighed. Policy cannot be driven by the kind of hysteria and fear-mongering that plagues every Republican talking point.

Left or right, we can imagine that there are very few people who think abortion is a swell thing that should be encouraged, and few would recommend it as a regular means of birth control (compared to other forms of contraceptive.)
Texas’ absurd anti-abortion clinic bill deliberately pushes women to seek self-induced abortions at their own peril. At the same time, Texas has prosecuted women for administering their own pregnancy terminations. Effectively, Texas has told its female citizens that, practically- and legally-speaking, they must carry their pregnancies to term whether they wish to or not. And those most affected by this reality face an uphill battle seeing true representation within Texas.
Abortion in America
Time for a short history lesson.
It is helpful to note too that Roe v. Wade- the Supreme Court decision that upheld a woman's right to an abortion was a Texas case. 
Before 1821, there were no statutes against abortion. Even though state laws were enacted that formally made abortion illegal around this time , it was not the result of any campaign to stop abortion. If a woman wished to terminate a pregnancy, the law rarely stood in her way. It was considered to be the last choice for a desperate woman fearful of bearing an illegitimate child.

After 1840, attitudes gradually began to shift. Advanced in medicine and biology called into question the point where life began. Doctors and medical organization were deeply divided on the issue. The anti-abortion was shared by the medical profession. Indeed, the attitude of the profession is thought to have played a significant role in the enactment of stringent criminal abortion legislation during that period.

Nevertheless this was still largely a matter of individual choice, so long as  the abortion took place early in the pregnancy and not during the latter stages. (During the "quickening" stage, when the fetus is much more developed and closer to viability, abortion was no longer considered a misdemeanor but an act of manslaughter.)

Despite its criminal status, abortive services could be discreetly obtained  through newspaper advertising. Though the language may have been in code, the language in the ads gave plenty of hints and it  wasn't hard to read between the lines. "Clinics for ladies" offered treatment for "menstrual irregularities" "for whateverever cause" with confidentiality guaranteed.
Other ads sold medicines for at-home use. These ads were also couched in a covert language that wasn't too difficult to decipher. A history of contraception notes:
Ads warned readers that "married ladies, who have reason to believe themselves in the family way, should not use them, as, by their action on the womb, miscarriage would be the consequence."
This was an age when medicines were not properly regulated and many poisonous substances could be sold as quack cures. These substances, known as abortifacients, or drugs used to induce or hasten menstrual flow, resulted in an induced miscarriage could be ineffective and often extremely dangerous. 

Few of these "curatives" listed their ingredients, but may have contained one or more of the following toxic items like: pennyroyal rue, hellebore, mistletoe, savin, foxglove, bloodroot, ergot, or aconitum.

Some historians believe that the availability of abortions at that time was responsible for the decline in the American birth rate.
Over the course of the 19th century, the birth rate in American fell from seven children per family to 3.5. Nobody knows how important abortion was to this decline, but estimates from varying sources suggest that, by the middle of the nineteenth century, approximately 20% of all pregnancies ended in abortion. 
At first glance, that's a pretty shocking claim but then we must also keep in mind this was the age in which access to contraception was limited, especially outside of the urban areas and towns.   

The tide changed in mid-century when states took a more much more negative view. One reason suggested by some historians was that Protestants feared that Catholics with all that religiously-mandated baby-making would soon take over the country. By 1900, all states in the nation had laws that made abortion illegal and at all stages of pregnancy. Furthermore, anybody who performed or assisted in an abortion could be arrested on felony charges.

Texas as the Abortion Epicenter
In 1854, Texas made a single but notable exception to the anti-abortion standard of that time. Abortions could be legally obtained in Texas if the mother's life was in danger. It was the only state to formally recognize this exception to the law of the land, but similar statutes were later enacted in a majority of the States.

This deliberately ambiguous phrases created a loophole that allowed doctors to interpret the meaning on a case by case basis. (Even that exception is under attack, with pro-life activists now claiming that abortion is never under any circumstances justified.)

Skip to 1969. 
When unmarried Norma McCorvey residing in Dallas sought to have an abortion, "performed by a competent, licensed physician, under safe, clinical conditions" that Texas century-old law was still on the books. 
McCorvey had claimed that she had been a victim of a gang rape (she later retracted that allegation and eventually found Jesus and took a pro-life stance.)  In her mind, the state laws had effectively forced to have a baby she could not afford and did not want. 
In practical terms, McCorvey believed she was being held hostage to her unborn child and an unsympathetic authority and being, in that light, deprived of her own rights. 

In 1970, McCorvey filed a lawsuit against the Dallas County district attorney, Henry Wade challenging the Texas laws that criminalized abortion. By law, McCorvey had no legal basis for having an abortion, since even she admitted that her life was no not threatened by the pregnancy. Instead, she was suing the-the state of Texas "on behalf of herself and all other women." 

The question was whether Texas actually had the right to force a woman to carry to term a pregnancy for any reason or whether the right to individual privacy - only implied in the Constitution- outweighed the legitimate interest of the state.

When a district court ruled that Texas had given no convincing argument that called for interference in this personal decision. The fundamental right of single women and married persons to choose whether to have children is protected by the Ninth Amendment, through the Fourteenth Amendment. 

Texas officials were clearly not willing to let the matter drop and decided to appeal to the high court. 
The case became known as Roe v. Wade

Much to the dismay of the lawyers representing Texas, the Supreme Court decision upheld the lower court's decision. State laws prohibiting abortion could not be reconciled with the Constitution.

Critics of that ruling point out that the 1973 Supreme Court decision redefined the original terms of the Texas law. Whereas the law says that abortion was permitted only when the mother's life was in danger, the judges interpreted it mean the mother's health
Further, the opponents claimed that the term "health" was so broadly defined as to include "physical, emotional, psychological, (or) familial" trauma. In doing so, the Justices "effectively made abortion legal through all nine months of pregnancy, for virtually any reason at all."
It's a good argument, but that point came from the district court when it was asked to review the legitimacy of the law. The Supreme Court had wider concerns. 

The Supreme Court's main reason for upholding the lower court decision had to do not with particular wording of the law but the conflict it created with individual rights. Did the government have the right to step into what should be a private matter? If so, under what rationale? What pressing need demanded necessitated government's involvement?

Justices of the high court found no scientific evidence that conception alone should be the starting point of life and therefore for the fetus' constitutional protections. Justice Harry Blackmun
observed that that most references to persons in the Constitution have no possible prenatal application. 
If the drafters of the constitution had intended there to be specific citizen protections granted at such an earlier stage of existence, then surely there would have been a clear mention. We must assume that, that the term "person" cannot be including unborn children.
(This point has since been resurrected repeatedly since that time.)
Strike One.

The state of Texas also argued that abortion was a highly dangerous medical procedure and that a criminal abortion law was designed to protect the pregnant woman, that is, to restrain her from "submitting to a procedure that placed her life in serious jeopardy."
It was an attempt to insinuate that anti-abortion laws were actually a public health matter, giving states the proper authority to interfere.
The court agilely dismissed this argument, pointing out that in 1854 (when the Texas law was adopted) even when performed under the most optimum conditions available, abortion might well have been dangerous. 
That was well over 100 years ago. Today the risks incurred in abortion are far less. In fact, it could reasonably be argued that by criminalizing abortion, the woman's life is at far greater risk. Here's how the Supreme Court broke it down:
The State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient. This interest obviously extends at least to the performing physician and his staff, to the facilities involved, to the availability of after-care, and to adequate provision for any complication or emergency that might arise. The prevalence of high mortality rates at illegal "abortion mills" strengthens, rather than weakens, the State's interest in regulating the conditions under which abortions are performed. Moreover, the risk to the woman increases as her pregnancy continues.
Strike two.
Ultimately it boiled down a question of the limits of the state's authority.  As one judge wrote:
"If the right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision not to beget a child."
In short, it was nobody's business and especially not the government's. While many conservatives decry government interference (when it comes to religious liberty, for example), they forget that the court's decision in Roe v. Wade was based on that very principle. Anybody who supports the right to privacy should, in theory, support the court's final ruling in  1972.

In terms of the judicial review, the matter should have been settled. The only remaining recourse for anti-abortionists would have been to enact an amendment to the Constitution, specifically exempting abortion from Ninth Amendment protections of privacy.  As the graph above suggests, support for such an amendment has never been a majority view, never above 50% of the population.
A recent Gallup poll noted that Americans sensibly believe abortion should be legal, but on a somewhat limited basis. The survey also found that:
Abortion is not a critical issue for most Americans, and while the majority of respondents say they feel strongly about their views, few indicate that their support for political candidates depends on agreement over abortion, or that it is an important issue for candidates to discuss.
Rejection and Hysteria
Needless to say, conservatives in Texas (and most other places) have never accepted the Roe v. Wade decision and have essentially worked as hard as possible to undermine what should have been that final ruling. Even to the present point of hysterics with presidential candidate equating Planned Parenthood with heroin dealers. The debate reached a new low when a Maine Republican Lawrence Lockman remarked, if women should be allowed to have abortions, men should be allowed to rape. 

The claims have gone from unscientific to downright idiotic and inexcusable. To cite one notable example: when the Right claimed that rape rarely results in pregnancy. Where they got this nonsense, who knows? Rape-related pregnancy is a very serious problem and it's the job of responsible politicians to stay informed as much as possible.
Following a 1996 study, at the Medical University of South Carolina, researchers estimated that about 5 percent of rape victims of reproductive age (12 to 45) become pregnant — a percentage that results in about 32,000 pregnancies each year. Another study four years later backed up the previous estimate and calculated the number at as many as 25,000 pregnancies in the U.S. each year.

Ironically without determined conservatives in Texas, there would have been no Roe v. Wade and no constitutionally-approved right to legal abortion. Even though Roe v. Wade is over forty years old, Republicans in Texas are still determined to abolish women's rights to make their own decisions about motherhood.
Of course, Texas lawmakers’ narrow-minded vision of reproductive rights ignores what we know to be true — pregnancy terminations are inevitable.

The saddest part of this story is that, for deaths by illegal abortions have been in sharp decline since the 1940s.
Today, due to the legalization of abortive services, the chances of women dying as a result of a backstreet or DYI abortion are far lower than back in our grandmother's time.
As dangerous as it once was, that doesn't seem to have lessened the practice.
By making it illegal (and cutting funding for women's reproductive health services, in general) things would most likely return to 1940s with all of the incumbent risks to women, with none of the advancements of modern medicine.  
Would [the Texas legislators] truly prefer to moralize via state bills rather than safeguard the health of their fellow Texans? It would appear so.
 And as long as they keep being voted into office, there's every sign they will continue to disregard the law of the land and to play political games with the health of Texas' women. 


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