Daily Archives: April 24, 2007

The Lie at the Heart of Gonzales v. Carhart

(My source for the quotations and information is Justice Kennedy’s majority decision and Justice Ginsburg’s dissent in Gonzales v. Carhart. These documents can be found here.)

Tom Joaquin
The Free Lance

By now, most people are aware of the summary holding in Gonzales v. Carhart: for the first time since Roe v. Wade, the Supreme Court left standing a law proscribing a particular abortion procedure without an exception to safeguard a woman’s health. Standing alone, this is a terrible result, but understanding the rationale of the decision was made is more frightening still.

In upholding the “Partial-Birth Abortion Act” (referred to here as just “the Act”), the Supreme Court’s new majority drew upon old lies about the emotional fragility of women, and the need to protect them from their own decisions. The Court used this old myth to bypass forty years of precedent safeguarding reproductive rights. The Court allowed Congress to place political values over best medical practice, and to put women’s lives at risk. The Court’s willingness to put aside legal precedent and scientific fact in this case may encourage more attacks on constitutional rights in the future.

Understanding Carhart requires some minimal understanding about abortion procedures. The Act targets the procedure used in essentially all abortions taking place after first trimester and before viability. (Viability is the point in pregnancy when, given the current state of medicine, a premature infant has a fifty percent chance of survival. At present, viability occurs around the 23rd week.) The procedure is referred to as “dilation and evacuation” or “D&E”. A D&E is performed by first dilating the patient’s cervix for a period from a few hours to a few days. The physician then removes the fetus, placenta and related material from the uterus through the cervix, and out of the body. Often, the fetus must be removed from the uterus in pieces. Sometimes, though, the fetus can be removed from the cervix intact (called an “intact D&E” by the Court). Because the fetus is not destroyed during the intact D&E process, the physician must ‘kill’ (the Court’s word), the non-viable fetus. The loaded term “partial-birth abortion” is thus an obvious mischaracterization of this procedure. The nonviable fetus cannot be “born,” either partially (whatever that might mean), or otherwise.

The Court notes that many physicians testify that trying to remove the fetus intact is sometimes medically necessary and always preferred medical practice. Removing fetal material in pieces take longer, thus extending the time the patient must stay under anesthesia. Many small pieces of material raise the risk of uterine damage, as well as the possibility of post-surgical complications resulting from failure to remove all of the material.

The line drawn separating intact D&E’s from all others appears to originate with Congress and the Court. In any case, Congress finds the “intact D&E” procedure distasteful. Well, perhaps more than just distasteful. According to the Court, Congress says the intact D&E is a “gruesome and inhumane procedure that is never medically necessary and should be prohibited”.

Congress, however, cannot constitutionally pass a law with the primary goal of prohibiting an abortion procedure. As Justice Ginsberg points out in her excellent dissent, Congress must consider all that troublesome precedent about a woman’s right to choose, and the idea that a woman’s decision to bear a child is central to her “‘dignity and autonomy,’ her ‘personhood,’ ‘destiny,’ and her ‘conception of her place in society’”. According to over forty years of developed precedent, a law cannot constitutionally place “a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”

But there is a loophole: Congress can pass a law that makes it more “difficult and expensive to obtain an abortion,” as long the law’s primary purpose is not specifically to interfere with the right to have an abortion. For the Act to pass constitutional muster, Congress needs a convenient fiction about the Act’s purpose. Fortunately for Congress, the new majority in the Court is happy to oblige.

According to the Court, the Act is intended to protect “mothers,” who are emotionally sensitive and liable to regret their decision to have an abortion. There are no “women” in the Carhart decision. There are only ‘mothers, a group that includes women whose pregnancies were terminated.

The Court begins by adopting nostrums from Congress: “Respect for human life finds an ultimate expression in the bond of love a mother has for her child.” Because of the importance of this “bond of love,” the Court decides that, although there is “no reliable data to measure the phenomenon, it seems unexceptional to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of self-esteem can follow.”

The Court then supposes, again without any factual support, that “some doctors may prefer not to disclose precise details of the means that will be used” for performing the abortion. The physician’s postulated failure to be frank about the procedure can compound already existing emotional difficulties: “It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming human form.”

This overheated language distracts from real problems with the Court’s argument. First, the story about the emotional damage that can result from having had an abortion just isn’t true. In her dissent, Justice Ginsburg provides a long list of studies from respected sources debunking the “idea that having an abortion is any more dangerous to a woman’s long-term mental health than delivering and parenting a child that she did not intend to have.”

Secondly, if a woman does come to regret her decision to terminate her pregnancy, is it likely she would prefer to learn her abortion was performed by removing the fetus from her uterus in pieces, or that it was removed intact, the safest possible method

Finally, wouldn’t it make more sense simply to require physicians to inform women of the abortion method to be used along with other information currently required by law to be provided the patient?

The Court doesn’t discuss these issues because the truth is less important than upholding the Act and setting the stage for future cases. The old argument about protecting the life of the unborn doesn’t need to be raised anymore to attack abortion. The new argument that abortion should be done away with is based upon the offensive lie: Women are emotionally fragile, and might decide on abortion, even though abortion separates them from participating in the “ultimate expression” of “respect for human life.” They may later come to regret that decision, leading to emotional illness. Learning about how the abortion was carried out will further damage these women emotionally. Therefore the practice must be eradicated.

This argument is sufficient to prohibit one method of performing abortions. Is there any reason why it won’t work to ban others?

 

This is the first of two posts discussing the Carhart case. In the next post, I’ll discuss the mechanics of the Act itself, how it allows Congressional opinion to overrule science, and the danger this poses to the health of women.

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Mind the gap!

Today is Equal Pay Day according to an AFL-CIO email I just received. What they mean is that, on average, a woman needs to work a year and four months to earn what a man earns in one year. That means that it isn’t until sometime near the end of April that women catch up to what men earned the previous year.

While we all know households where a woman is the primary wage-earner, there is a persistent gap in the average earnings for men and women working full time, year-round. Forty-four years after the Equal Pay Act of 1963 mandated that men and women with equal experience and qualifications who do the same work be paid equally, women working full time, year-round make about 73 cents for every dollar men make. Or, put the other way around, men working full time, year-round, make 1.37 for every dollar women make.

To get a more specific sense of the inequality in different occupations, click here for the Bureau of Labor Statistics “Median weekly earnings of full-time wage and salary workers by detailed occupation and sex” Some interesting examples:

At the upper end of the economic spectrum:

  • The median CEO weekly salary is $1,907 for men and $1,422 for women, with men making $1.34 for every dollar women make (or, the other way around, women CEOs make about 75% of what men make)
  • Among lawyers, the median weekly salary for men is $1,891 and for women it is $1,333, so men make $1.42 for every dollar women make (or women make about 70% of what men make).

At the lower end:

  • Among cashiers, the median weekly income for men is $387 and for women it’s $327, so men make $1.20 for every dollar women make (or women make about 83% of what men make).
  • Among waitstaff the median weekly income for men is $401 and for women it’s $348, so men make $1.16 for every dollar women make (or women make about 86% of what men make).
  • Among housekeeping and janitorial staff the difference is about the same as for cashiers with income being only slightly higher.

The wage gap holds at the lower end of the economic spectrum as well as at the upper end but it’s worse at the upper end. And aside from the persistence of gender inequality in wages, it’s also important to be reminded of the startling income inequality between classes in the United States.

The AFL-CIO’s Union Voice campaign is asking people to contact their legislators to support two bills currently being considered in the U.S. Congress.

  • The Paycheck Fairness Act (S. 766 and H.R. 1338), which would provide more effective remedies for victims of wage discrimination on the basis of sex.
  • The Fair Pay Act (S. 1087), which would prohibit sex-based wage discrimination and would address the issue of comparable worth by calling for equal pay for equivalent work.

Please click through to support these bills. They are important bills. As the notice points out, given that the majority of households made up of a mother, a father and their children are households where both parents work, men and kids are hurt by the pay gap just as women are hurt by it. Pay inequality hurts men in opposite-sex partnerships because if their partners’ incomes are unfairly low, then the men themselves have to work more to make up the difference. This not only means more work, but also less time with family, and ultimately less time together.

Still, these bills alone won’t solve the problem. That’s because overt wage discrimination is not the only cause of the wage gap. The Fair Pay Act recognizes this by picking up on the issue of “equivalent work,” but even that fails to acknowledge some of the more persistent structural problems that underpin the wage gap.

Gender role socialization and the gender-typing of jobs probably have more to do with these structures than anything else.

For example, one important reason that men and women tend to have different salaries even when they are working full time doing the same jobs (take the waitstaff or the lawyers mentioned above) is that the men in those jobs may devote even more hours (in terms of overtime) than the women who work alongside them. Why? Often because it is women who take time away from the job to take care of children or aging parents. This gives men an edge in terms of earning seniority and promotions. This will not change based on the kinds of legislation being proposed. In fact, seniority is one of the reasons pay equity bills give for justifying differences in pay. So as long as women are more likely to take time off from work to take care of people, women as a group will tend to make less than men do.

There is another piece to that equation, too: Let’s say you are a woman, and you and your male partner both work full time. Let’s say you want to make decisions purely rationally, that is, without reference to gender roles, and you need to decide whose wages can be sacrificed for a while in order to tend to a child. Wouldn’t you choose the person with the lower wages? And that person would more likely to be you, the woman. The cycle is a hard one to break.

In addition, because of gender role socialization, men and women still don’t all do the same kinds of jobs. And within broad job categories they don’t choose the same specializations. Take teaching. High school teachers make more than kindergarten teachers. Kindergarten teachers (who make an average of $555 a week) are much more likely to be women than to be men. High school teachers are slightly more likely to be men than to be women and make an average of $950 if they’re men and $890 if they’re not. Among doctors, cardiologists are much more likely to be men than to be women. In the medical field in general, women are much more likely than men to be registered nurses. Cardiologists make a lot more than registered nurses, just like high school teachers make a lot more than kindergarten teachers.

Some part of that division, too, comes down to expectations about family roles. To be a cardiologist requires putting several years-worth of incredibly long hours of highly specialized training. This is a difficult thing to do if you want to have a family. But it is much more difficult if you are a woman and you want to have a family than it is if you are a man and you want to have a family. Why? Because generally, if you are a man and you want to have a family, you imagine that you will have a woman who will do much of the home/family support work. Men less often perform the kind of work/family calculus that women expect to have to perform.

What would it take for women not to be handicapped at work by the expectation (and their own desires) to be primary care givers? It would certainly take better organized and subsidized child care. It would take radical changes in the way that health care and care for the aging are managed.

What would it take for women to be better represented in jobs that are traditionally male jobs? Not much more, actually, than we’re already doing. Women are going into previously male-dominated professions at increasing rates.

The bigger question is this one: What will it take to get men into jobs that are predominantly “women’s” jobs — jobs like child care, nursing, home health care, and so on. Because if some women move out of these jobs and move up the ladder, so to speak, people will have to take their places. If those people are also women, we haven’t changed the balance at all.

And men, as human beings, are harmed by the social pressures that cause them to exclude themselves from jobs that would emphasize their capacities for love, compassion, and nurturing. Children are harmed, too, as they get less nurturing contact with the adult men in their lives.

What keeps men from these jobs? One thing is wages. They don’t generate enough income. Another is socialization. We imagine that taking care of children or cleaning up after people is “women’s work.”

And then, unfortunately, we devalue it.

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Other resources for pay equity action:

Coalition of Labor Union Women

National Committee on Pay Equity

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