Mama's Got a Plan:

Maternity Care, Health Insurance, and Reproductive Justice

Tag Archives: abortion


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Dobbs after Roe

As the Dobbs regime succeeds Roe, the flames creep closer to everyone.

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The end of an era

With this year’s decision in Dobbs v. Jackson Women’s Health Organization, SCOTUS has ended an era that began with Roe v. Wade in 1973. The action to which the decision has spurred outraged Americans is a silver lining, especially as activist energy extends to other legal regimes deserving of attention. Voting rights? Immigration law? Responses to climate change? One can hope. Without undervaluing the importance of abortion rights, however, we can also admit that Roe, as well as its subsequent line of cases, was not without problems.

Roe‘s problems

The decision’s grounding in the right to privacy, as pulled from the Bill of Rights – or thin air, as per opponents – did not offer the soundest protection. (For other theories of abortion rights, see here. For an examination of privacy and poverty, see this book by the brilliant Khiara Bridges.) Roe also contained language that placed at least some decision-making capacity In the hands of the physician rather than the pregnant person, and used a trimester measurement that reflected only a chronological marker rather than a substantive reason for restricting abortion. It took no notice of the existing uneven access to abortion, similar to access to other health care services. In 1992, Casey v. Planned Parenthood replaced the trimester measurement with “viability,” a moving target due to ever-improving medical developments to treat the neonate. Casey introduced a new legal standard: states were not permitted to restrict abortion for pre-viability pregnancies in ways that presented an “undue burden.” However, subsequent cases failed to rule out most restrictions as undue burdens. Pregnant people apparently suffered no undue burden by being forced to travel long distances with a forced overnight stay so that they might be read a state-mandated script on the alleged risks of abortion and then wait 24 hours to let it sink in before their procedure might begin. In many states, access to abortion under Roe and then Casey was no cakewalk.

Roe‘s OTHER problems

Equally onerous, but much less remarked by the pro-choice movement, was Roe’s misapplication to pregnant people who wanted to continue their pregnancies. How did that work? Roe granted states an increasing “interest in the fetus” over time: states were granted the ability to restrict abortion the farther a pregnancy advanced. Unfortunately, various segments of law enforcement and the judiciary misinterpreted abortion law to mean that states also had an interest – that is, a right to interfere – in pregnancies carried to term. The result has been any number of state interventions, from railroading pregnant people into cesarean surgery, threatening them with child abuse and neglect investigations for failing to fall in line with medical recommendations, all the way to the criminalization of pregnancy, in which Black and Brown people especially are prosecuted if they are found to have used drugs and/or their pregnancies do not result in a perfectly healthy child, even lacking any evidential causal relationship between the two circumstances.

Roe’s demise, far from removing this misapplication, shifts it earlier in the pregnancy. Who can say now when the state’s interest in the prenate begins? When, in fact, does the prenate’s life begin? (That question is examined in this post.) And how early in the life of a person with even the appearance of a future capacity for pregnancy might the state step in? What might the state do now to maintain control over reproduction while continuing to feed the racist prison-industrial complex?

Lace up those boxing gloves!

The moral of this story: Pregnant people possess a common interest, whether they intend to terminate their pregancies or carry them to term. It is in the interest of anyone with a desire to protect reproductive rights, whether that be the right to have children, the right not to have children, and the right to raise children in safety and with dignity, to fight like hell against legal regimes that allow the state to impose restrictions for which pregnant people will bear the consequences.

Image credits

All images are shared under a Creative Commons license, unless otherwise noted. Where required by license, changes to the image are noted.

 

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All the controversies at once!

What this cartoon is not about

  • Abortion, and whether it’s good or bad to have one.
  • Vaccines, and whether it’s good or bad to have one.

People will and do differ on these questions. This cartoon assumes that you want to do the good thing, whatever that is, and that a bad thing is mistreatment or exploitation of people of Color based on racism, whether intentional or not. Are we clear?

What this cartoon is about

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<a href="https://mamasgotaplan.files.wordpress.com/2021/06/210609-one-moral-concern.jpg&quot; alt="C" width="1018" ><img="" class="wp-image-2081 size-full aligncenter" style="margin-bottom: 0;" title="CLICK TO ENLARGE!"

<a href="https://mamasgotaplan.files.wordpress.com/2021/06/210609-one-moral-concern.jpg&quot; alt="C" width="1018" ><img="" class="wp-image-2081 size-full aligncenter" style="margin-bottom: 0;" title="CLICK TO ENLARGE!" Some people with concerns about the safety or efficacy of vaccines object to the presence of “aborted fetal cells” in vaccines. However easy (and gruesome!) it is to picture a dismembered hand pushing up through a syringe’s liquid, that is not the reality. As the blue-jacketed person in Frame 3 tries to point out, what is in question are cell lines. How are cell lines formed? Scientists use cells taken from an organism, e.g. kidney cells taken from a dead human embryo, and create a replicating cell line. The original kidney cells eventually die off, just as cells in the body do, and are replaced by genetically identical cells created by standard biological cell division. These cells are then combined with viruses and used to create a vaccine. (For fascinating photos of human embryonic stem cells, see here.)

Given this significant distance in both time and nature between embryo and vaccine, what are the moral and practical grounds for boycotting the vaccine because of this association? Those who wish to discourage abortion will not do so by refusing vaccines; the abortions that created the cell lines involved took place decades ago. Should a scientist decide to create a new cell line from embryonic material, current U.S. ethical rules1 forbid the solicitation of pregnant people to terminate pregnancies for the purpose of supplying material for scientific research. People will no doubt continue to terminate pregnancies and the products of conception might subsequently be donated to science, but disrupting that relationship will not prevent abortions. 

Do boycotts ever work?

1979 divestment protest, University of Michigan

Boycotts have been effective in other circumstances. Starting in the 1970s, a divestment movement demanded that global institutions isolate South Africa from external trade and investment as a way of pressuring the regime to break down its racial Apartheid system. It worked! South African carried out reforms, a civil war was averted, a Truth and Reconciliation commission took place, and eventually Nelson Mandela became president. By the mid-1990s, Apartheid was no more. In South Africa’s case, the objectionable behavior – the subjugation of a majority of the citizenry – was ongoing. The intense financial pressure applied in the boycott served as an incentive for the government to change its behavior.

Harm that can be redressed – but how?

Other wrongs, however, remain to be righted: consider the case of Henrietta Lacks. The HeLa cell line was developed from cells taken from the cervical tumor that killed Lacks in 1951. The line has been successfully used for far-reaching discoveries in cancer drugs, space research, and immunology, including in the study of COVID-19 in search for a vaccine. The moral issue arises from the fact that while great good came of the establishment of the line, none of that good was directed specifically toward the Lacks family.

The cell line was created from cells taken from Henrietta Lacks, all without the knowledge or permission of the the Lacks family. This practice was and is perfectly legal, as validated by a 1990 California case: the court found that patients do not own any blood or tissue samples taken from their bodies, nor do they possess a right to share in profits from research activities that made use of those samples. However, in HeLa’s case it is difficult for us to ignore the vast gulf between the sums generated by the cell line and the reality of the lives of the Lacks family, who were African-American tobacco farmers in Virginia at a time of blatant racial discrimination. Because such inequalities continue and magnify down through the generations, this injury can be considered an ongoing one.

Should we refuse COVID vaccines because of what was done to the family of Henrietta Lacks? The last panel of the cartoon shows the absurdity of such a proposal: even if it were possible to discard the findings of the space program (!), how would such an action help the Lacks family? 

Restorative justice

Let’s try that again.

The concept and practice of Restorative Justice provides a way to compensate victims of injustice, while simultaneously working to prevent future similar injustices. Once used primarily as an alternative within the criminal justice system to address individual instances of property crime, Restorative Justice is now beginning to be deployed more broadly to tackle systemic injustice and inequity.2 The Restorative Justice framework would dictate compensation for the Lacks family and a strategy to reform medical research so that research subjects, particularly those whose bodies were historically used for others’ profit, would be assured of enjoying the benefits of the research. 

Following the publication of Rebecca Skloot’s 2010 book on Henrietta Lacks, her descendants established a foundation to “preserve her legacy by educating future generations on the impact of her phenomenal HeLa cells while promoting health equity and social justice.” In fact, August 1, 2020 marked the beginning of a year’s “Cellebration” of the 100th anniversary of Henriette Lacks’s birth. Today, February 14, 2021, the day of this blog post, the foundation suggests a donation of $14 as a “V-Day gift.” It is also worth noting that the foundation actually advocates for receiving the COVID-19 vaccine as a way to honor the legacy of Henrietta Lacks.

Similarly, those who wish to decrease the number of abortions might also consider a Restorative Justice approach. All birthing people, but especially people of Color, who are disproportionately represented among people terminating pregnancies, should be guaranteed sufficient health care access and financial support so that those who wish to do so can carry their prenates to term and parent all their children in safety and with dignity. Data from the Guttmacher Institute, as reported by CBS News, suggest that the inability to afford a baby is a reason for 73% of women who obtain abortions. Obviously, the fate of prenates who were not carried to term cannot be changed. But the fate of birthing people can. It would make sense for everyone, whatever their position on abortion, to support organizations that fight to improve circumstances for birthing people and their children, like Mothering Justice, Black Mamas Matter Alliance, and others. 

One moral concern?

Finally, regardless of the utility of boycotts and the application of a restorative justice lens to problems of fairness and equality, is there ever a world in which one moral concern can override all others? You might believe, for example, that your cause in life is to save elephant species from extinction. They are beautiful, intelligent animals, and you are sure they have souls. You might feel moved to decline a vaccine because it was created using, say, cells from elephant ivory,3 which poachers obtain by killing the animals. But to ignore all other issues – climate change, political unrest, or a world pandemic, perhaps? – not only means  that an opportunity to save the elephants might elude you, but also suggests a lack of connectedness to the larger world. Friends, the world needs many things. We our connected to our natural world and to one another. Please, let us consider multiple viewpoints and multiple approaches for our mutual aid.

Updated June 9, 2021: graphic replaced and small stylistic changes made

1The Common Rule (45 CFR part 46), the Federal Policy for the Protection of Human Subjects, was established in 1991. It is enforced by research institutions through Institutional Research Boards. Note that the Common Rule applies only to medical research, not medical practice.

2“Restorative justice began as an effort to deal with burglary and other property crimes that are usually viewed (often incorrectly) as relatively minor offenses. Today, however, restorative approaches are available in some communities for the most severe forms of criminal violence: death from drunken driving, assault, rape, even murder. Building upon the experience of the Truth and Reconciliation Commission in South Africa, efforts are also being made to apply a restorative justice framework to situations of mass violence. These approaches and practices are also spreading beyond the criminal justice system to schools, to the workplace and religious institutions. Some advocate the use of restorative approaches such as circles as a way to work through, resolve and transform conflicts in general.” Zehr, Howard. The Little Book of Restorative Justice: Revised and Updated. New York: Skyhorse Publishing Company, Incorporated, 2015. See also “Restorative Justice as a Social Movement,” in Mark Umbreit and Marilyn Peterson Armour, Restorative Justice Dialogue: An Essential Guide for Research and Practice, 2010.

3Completely fabricated, in order to make a point.

Further reading

Image credits

All images are shared under a Creative Commons license, unless otherwise noted. Where required by license, changes to the image are noted.


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Graphic and Fact Sheet. Abortion Rights After Texas – AwakenMichigan

We continue to share cartoons created for other organizations. This second post on abortion jurisprudence – published following the Hellerstedt decision – was created for AwakenMichigan: Reproductive and Sexual Justice Project. 

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Click the image to open a larger version in a new window.

 

EXPLANATIONS AND ATTRIBUTIONS

Frame 1 depicts, of course, Justices Ginsburg and Kennedy. For RBG’s portrait, we used an image from the marvelous coloring book created by Karen Cox/She Knows.

Frame 2 shows an abortion clinic administering a medication abortion in the surgical-grade premises that would have been necessary had the Texas law been upheld.

Frame 3 lists other common abortion restrictions – most of which are currently in force in Michigan. Whole Woman’s Health v. Hellerstedt does not invalidate any of these restrictions; further court challenges will be necessary to determine if they constitute undue burdens.

Frame 4 broadens the scope even more to show that securing abortion rights is only one small part of the full spectrum of reproductive rights – which itself is just one aspect of Reproductive Justice. The two panels read:

The right to have a child, the right to not have a child, the right to parent my own child. This is Reproductive Justice. 4000 Years for Choice.

You deserve to choose not to parent regardless of the circumstances of your pregnancy and how much money you make. Affordable abortion access is Reproductive Justice.

We thank Heather Ault of 4000 Years for Choice for permission to use her work.

The latter panel is from the Repeal Hyde Art Project. The image is licensed under a Creative Commons license. We changed this image by cutting off the far right edge and manipulating the contrast for increased legibility.

Source: Graphic. Abortion Rights After Texas (2016).


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Graphic and Fact Sheet. Abortion: A Reproductive Justice Perspective – AwakenMichigan

We continue to share cartoons created for other organizations. This one, on abortion jurisprudence before Hellerstedt, was created for AwakenMichigan: Reproductive and Sexual Justice Project. Stay tuned for a second post, created following the Hellerstedt decision!

 

 

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[Updated July 16, 2016, to add copyright designation.]
Source: Graphic and Fact Sheet: Abortion: A Reproductive Justice Perspective – AwakenMichigan


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A Third Amendment theory of abortion rights

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This cartoon grew out of the study of different constitutional theories of abortion rights, some better known than others. The First and Second Amendments of the Constitution have infiltrated the popular imagination, but the Third -? What is the Third Amendment, anyway?

Frame 1. The soldier in the title frame is General John Burgoyne, as shown in his portrait by Sir Joshua Reynolds, c. 1760.

Frame 2. Justice William O. Douglas first articulated the Privacy framework in the case of Griswold v. Connecticut (381 U.S. 479 (1965)), which concerned not abortion rights, but the right of married couples to use contraception. As Privacy is not a right specifically named in the Constitution, Douglas introduced the concept of a penumbra, a shadow or cloud emanating from the Bill of Rights, chiefly the First Amendment. Privacy was defined as preventing the government from interfering with marital privacy. This protected area was later expanded to rights to contraception for unmarried people, and then to abortion rights (see Roe v. Wade, 410 U.S. 113 (1973).

Frame 3. Justice Ruth Bader Ginsburg believed that abortion rights were better protected by the Fourteenth Amendment’s Equal Protection Clause:

“… legal challenges to undue restrictions on abortion procedures do not seek to vindicate some gen­eralized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.”
– Gonzales v. Carthart, 550 U.S. 124 (2007), dissent

Ginsburg’s critique of Roe‘s constitutional basis is described in greater detail in this article. Neil S. Siegel and Reva B. Siegel, in their 2013 journal article, “Equality Arguments for Abortion Rights,” further explore the Equal Protection argument by quoting Justice Blackmun’s dissent in Planned Parenthood  v. Casey. Blackmun asserts that the Court’s assumption that women “can simply be forced to accept the ‘natural’ status and incidents of motherhood—appears to rest upon a conception of women’s role that has triggered the pro­tection of the Equal Protection Clause.”

Frame 4. According to the History Channel, the photo of African-Americans in the cotton fields represents a “slave family standing next to baskets of recently-picked cotton near Savannah, Georgia in the 1860s.” The realities of slavery with respect to women’s reproduction has been ably addressed by Dorothy Roberts and Rickie Solinger, who discuss both the coercive nature of these women’s pregnancies as well as their subjugation to the role of producers of future slaves.

The connection to abortion rights is the Thirteenth Amendment, which forbids slavery and involuntary servitude. Legal scholar Andrew Koppelman, in his 2012 article, “Originalism, Abortion, and the Thirteenth Amendment,” draws an analogy between the forced labor of slaves, including their forced reproduction, and the forced labor of women compelled by abortion bans to carry their pregnancy to term. Of course, Koppelman is not claiming that absence of abortion access is equivalent in severity to the past system of slavery in this country, only that both issues can be seen as a violation of the Thirteenth Amendment.

Frame 5. The crowd at the 2004 March for Women’s Lives seems puzzled by the Third Amendment. The photo of the march by Bubamara, shared under a Creative Commons license, is augmented by an airplane towing a “Keep Abortion Legal” sign.

Frame 6.  At last! All is explained! The Third Amendment forbids the forcible housing of military personnel in  citizens’ homes. Its incorporation in the Bill of Rights was a reaction by the Founders to that very practice carried out by the British during the Revolutionary War. The home pictured here is the Brewster House of Setauket, New York, built in 1665. The photo is by Iracaz, shared under a Creative Commons license. The reluctant B&B host is taken from a work housed in the New York Public Library. She is Elizabeth Zane, whose exploits are detailed here; apparently, she was the inspiration for Zane Grey’s Betty Zane (1903), the first volume of his Ohio River Trilogy.

Frame 7. The Guttmacher Institute, one of the prime sources of U.S. abortion data, lists state abortion restrictions enacted during the last several years. The old woman in the shoe, it is surmised here, has so many children that she doesn’t know what to do because of these abortion restrictions. She accuses the state of forcibly housing a fetus in her uterus.

Frame 8. Prepare for a romp through property law, Dear Reader! (Remember, don’t go to law school.) We apply this question: when can someone else be in your home? In this frame, the fetus is compared to a guest who has been invited but is now being asked to leave – as is acceptable at common law, under which tenants or guests of property owners possess relatively few rights. The scene shown, for those who came of age after reruns of The Jeffersons ceased, is of Mr. Jefferson ejecting Mr. Bentley. The dialog, however, is taken not from The Jeffersons, but from The Spellbinders Collection. Our thanks to Ed G. for suggesting this source.

Frame 9. On the other hand, perhaps the fetus is more like a tenant delinquent in rent payments and now facing eviction, as shown in this 1892 painting, Evicted, by Danish artist Erik Henningsen. This image is in the public domain. This comparison highlights the uncompensated nature of women’s labor: the fetus, after all, gives no consideration in exchange for housing – and neither does the state that imposes abortion restrictions.

Frame 10. We move on to trespassing. Harrison Ford, as President James Marshall, spends most of Air Force One (1997) playing hide-and-seek with a deadly group of planenappers. When the president finally gets Gary Oldham (“Ivan”) in his clutches, Ivan finds himself violently pushed off the plane. We show the classic line in a still from another scene (in which the president growls, “Leave my family alone!”). The true scene of Ivan’s end is here. It is worth mentioning that property owners are discouraged from using self-help to eject trespassers; since the president had no sheriff accessible, he can probably be forgiven for taking matters into his own hands.

Whether the fetus is trespassing on the pregnant person is an interesting philosophical question. However, given that almost half of all U.S. pregnancies are unplanned, it is fair to say that in many cases the fetus is present against the pregnant person’s wishes.

Frame 11. Even a person who comes on the land without the owner’s permission may gain some property rights. A prescriptive easement is granted when a person takes adverse possession of the land: their use of the land is open, notorious, and hostile. That is, they use the land openly and against the owner’s wishes, continuously over the course of a statutory period defined by the state. At the end of this period, they are granted an easement to be on the land.

In Michigan, the statutory period is fifteen years. Therefore, we show a fifteen-year-old fetus establishing a Disco in Utero. Even if she is there without her mother’s permission, may she invoke the law in continuing to occupy the space, operate strobe lights and loud music, and dance all night?

Confirmation of the Michigan fifteen-year statutory period led to immediate thoughts of a prenatal quinceañera celebration. Alas, there is not room here to explore this idea; the concept will have to be set aside for another cartoon. Forewarned!

Please note that this image is the only instance in this cartoon of a visibly pregnant person. That is because 65% of abortions in the U.S. are carried out by eight weeks’ gestation, before most pregnancies have begun to show at all. In fact, 91% of all abortions are carried out by thirteen weeks, still very early in a typical 40-week pregnancy. We felt that a fifteen-year gestation, on the other hand, really demanded a visibly pregnant person.

Frame 12. The final frame shows a 1787 painting of the Hartley family, by Henry Benbridge. We discovered this painting on the blog 18C American Women, maintained by art historian Barbara Wells Sarudy; we later tracked it down to the collection of the Princeton University Art Museum.

The ladies of Family Hartley are declaring their autonomy and personhood as an explanation of why an analogy of the fetus to an occupier of maternal land must ultimately fail. To separate pregnant person and fetus as conflicting entities – occupier and occupied – is tempting but unsound. As explained by the authors of Laboring On: Birth in Transition in the United States, mother and fetus constitute a bonded dyad.

A fetus is neither property nor a legal person, but a potential person. Women are not houses, airplanes, or discos. The fetus is not their possession, but part of them. The reason that pregnant people are the best decision-makers about abortion – or childbirth, for that matter – is that they are the experts. They hold close to their hearts the interests of their families, present and future, their own lives, and their many other responsibilities.

Your cartoonist expresses gratitude to SMV for inspiring this cartoon through his persistent complaints of the sad neglect of the Third Amendment in both U.S. jurisprudence and high school government classes.

[Updated Oct. 22, 2016, for some minor grammar and punctuation fixes. Updated Oct. 23, 2016, to fix factual error about Griswold.]

[Updated Oct. 11, 2017, to fix capitalization errors and the spelling of Gary Oldham’s name. In addition, we deleted a few sentences at the end of the post that we had unconsciously lifted from the end of a Margaret Drabble novel!]

[Updated July 25, 2021, to fix style and punctuation issues.]


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Life begins … when?

Many have been known to ask when life begins, in an attempt to establish boundaries for policy issues connected with female reproduction. We wonder whether that question can possibly give a sufficiently definitive answer to guide us in our quest. If it can’t, we might do better to turn to some other defining scheme – such as the wishes of the mother whose body stands between the world and the baby-to-be.

life begins … when?, slide1

Explanations and Attributions

The spherical building welcoming the sperm is in real life the “Kugelmugel,” a micronation located in Vienna.

The clock radio photo, by Chrissy Wainwright, is titled “It’s Too Early!” It is shared here under a Creative Commons license.

The dugout photo demonstrating implantation is by Christian Bickel, described as “Speisekammern in Keldur” (food chamber – probably storage – in Keldur). It shows an example of an Icelandic turf house.

The photo representing red menstrual waters is by Derek Harper, entitled “Red Sea at Babbacombe.” It is shared here under a Creative Commons license.

The pink building shown in Frame 4 is, of course, the Jackson Women’s Health Organization, in Jackson Mississippi, where the awe-inspiring Dr. Willie Parker practices.

The court cases mentioned on Page 2 are quite well-known and easily found online, should you wish to read the opinions. No cases are mentioned for the criminalization of pregnancy (Frame 4), but a visit to National Advocates for Pregnant Women will tell you all you need to know.

The adorable baby with doting mama were captured by Bonnie U. Gruenberg. The photo is shared here under a Creative Commons license.

The orange chair and other clipart were taken from cliparts.co.

The statue shown in Frame 4 on Page 2 is of unknown origin, although several photos of it can be found online, including here, where it is suggested the statue depicts (biblical) Rachel weeping for her children.

The police officer and the representation of the Big Bang are shared here under a Creative Commons license.

 

Updated November 2, 2017, to fix a typographical error.


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Not my usual topic, but not as far removed as you might think

Abortion rights article is not just about abortion!

My most recent article, “Michigan’s New Abortion Insurance Rider Law: Challenges, Spin, and Justice,” is now available on the blog of Michigan State University’s Center for Ethics and Humanities in the Life Sciences.

Although abortion rights is not my usual focus, fans of Mama’s Got a Plan may wish to read the article to the end to see how I tie abortion rights into the larger context of Reproductive Justice and then – presto! chango! – discuss the relevancy to my favorite topic of rights in pregnancy and childbirth.

Other content at MSU

MSU allowed me a great deal of freedom in constructing the article, for which I’m very grateful. I’d also like to thank them for inviting me to speak last year on the topic of vaginal birth after cesarean. The talk, The Declining Provider: Refusal, Responsibility, and Reasonableness, is still available as a free webinar.

Coming soon

  • Fun pop culture post
  • Custom-drawn blog header

Stay tuned!