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Should married couples have the legal right to use and practice birth control?

What a dumb question.  While I do not have the polling data to back this up, I suspect that even the staunchest conservative and religious enthusiast agree that a husband and wife have the legal right to manage their own procreation.  Hell, even natural family planning requires training; girls are not born with the innate awareness of their ovulation schedule.  Someone has to teach them.  

Now here’s the thing:  in 1965, state governments could – and did – outlaw contraceptives and made it a crime to educate citizens on how to prevent pregnancies.  Connecticut – liberal bastion that it is today, and where I call ‘home’ – was one such state.  Even in states that did not outlaw it, advertising birth control pills and other contraceptive devices were not permitted.  In Connecticut, anyone caught aiding and abetting women in their attempts to prevent conception could result in fines or imprisonment.   (Insert caveat:  I have no idea if teaching natural family planning was illegal, in fact, given the anti-birth control zealotry, I suspect that it was the preferred method.  I let the dramatization of my argument get away from me.  But still.  No birth control pills)? 

The history of these so-called “morality” laws is interesting.  Connecticut and Massachusetts were long dominated by puritan (root word being ‘pure’) zealotry, particularly when it came to sex.  Any practice, business, or occupation deemed immoral – or having the potential to induce wicked sexual behavior (like sex outside of marriage, or for purposes other than reproduction) was highly controversial.  This was the purpose of the Connecticut law banning the use of contraceptives.  It had been on the books for almost 100 years before the Supreme Court struck it down as unconstitutional in the landmark case, Griswald v. Connecticut.  

Why am I writing about birth control’s legality?  Because had I started with a warning about the ramifications of recent laws that ban abortion, or so severely limit and regulate it that it is effectively inaccessible, you may have assumed it was another “outrage” post and dismissed it.  By starting with such an obviously ridiculous question, my hope is that by now you are interested just enough to keep reading.  You see, the legal right that all women have to an abortion in the early months of pregnancy is closely tied to the Griswald case.  Now that Roe v Wade (1973) is facing a full frontal assault, we should all (women and men) understand the potential ramifications should this Supreme Court find it unconstitutional.  

Do we all have a right to privacy?

Once again Amy, dumb question.  Except that it is not.  You see Griswald was, not about stupidity, patriarchal social control, or religious freedom.  It was about whether the Constitution guaranteed every American citizen the right to privacy.  I would encourage everyone to pull out their pocket Constitution right now, and search for the word, “privacy.”  You will not find it.  And as I hope you know, in the strict Constitutionalist interpretation of our founding document, anything not explicitly enumerated in the original body of the text or the amendments is relegated to the states.  See the 10th amendment of the Bill of Rights:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Today, we can look at the 10th amendment and see a big neon loophole for state infringement on individual rights.  It would take the 14th amendment and oh, about 100 years, to narrow that loophole and now, in the 21st century, we seem to be devolving.  But at the time of the Founding, state governments acted as their own nations.  Citizens engaged with local and state officials – not the Continental Congress (the post Revolution’s national government, such that it was).  State legislatures were suspicious of a national government and wanted to preserve their autonomy, while still having representation at the national level.  

(This last part diverted a bit from the topic at hand.  I have no doubt that it will reemerge in future posts or random streams of consciousness.  Back to regularly scheduled programming).   

Griswald held that despite the Founders obvious omission, the elusive right to privacy (at the federal and state level) could be found in the “penumbras and emanations” of several other amendments.  Specifically, the ruling held that privacy was inherent in the 4th (the right to be secure in their person, houses, paper, and effects, against unreasonable search and seizure) and the 14th (protection from state denial of life, liberty, or property without due process and the equal protection under the law).  To us laymen:  7 of 9 justices read between the lines.  And you are glad that they did.  

Griswald was a watershed decision that paved the way not only for Roe but set in motion a series of long fought legislative and judicial rulings that allowed women to control their bodies and specifically, reproduction.  It gave women the legal foundation and the medical capabilities to decide when or if she would have children.  It allowed women to integrate more fully in the labor force, the military, and other formerly male-dominated professions.  It is the right to privacy and its application to sex and reproduction, that has allowed every woman you know, including you, to decide their own future.   

(Note:  Griswald established that we all have the right to personal privacy.  Its reach goes well beyond birth-control and abortion.  Anti-abortion activists, I implore you to consider what over-turning Roe, would mean to personal privacy.  Those on the right have no plans to stop at Roe, they are gunning for Griswald, given its legacy).

Why Alabama Matters

Roe v. Wade extended the right to privacy beyond the bedroom and into the doctor’s office, finding that a woman in the early stages of pregnancy could decide to terminate regardless of the reason.  The state did have an interest, in later stages (I believe after 22 weeks), in regulating abortion to protect the life of the mother.  But note again, the importance of “privacy.”  Nowhere in the Constitution does it state that women have the right to discuss reproductive options within the confines of her doctor’s office.  Nowhere does it state that the government cannot intrude on the sanctity of that relationship – just as it does not disallow intrusion into the marital bed.  Griswald found the right to privacy by interpreting the text of other amendments and what the Founders meant when they wrote them.  That does not stop strict constitutionalists from wincing with pain when Griswald is discussed.  Their discomfort is not necessarily because of abortion, but more so that constitutional interpretation extended beyond its literal text.  I suspect it is like nails on a chalkboard.  They would prefer to add a constitutional amendment that explicitly gives individuals the right to privacy.  Good luck with that.    

While Griswald’s legacy extends beyond Roe, for purposes of brevity, I will limit comments to the current movement to overturn the latter.  As you are no doubt aware, last week the Alabama state legislature approved a bill, unconstitutional on its face, to ban all abortions, without exception.  Other states followed suit, signing multiple laws that will severely limit women’s access to a safe and legal procedure.  All are intended to force a Supreme Court review of the near 50-year preceding set by Roe, which, if overturned would result in state legislatures moving forward with their own bans and severe restrictions.  America would then be further divided between red states that outlaw it, and blue state safe havens.  Exactly what our polarized society needs. <Insert sarcasm>

So let’s talk about why these laws matter to all of us, regardless of gender or child-bearing age.  Even the staunchest anti-abortion supporter could be adversely affected by these laws, or more specifically, a reversal of Roe.  They likely just do not know it yet.  

Banning abortion endangers women’s lives

You’ve heard this argument. And if you tend to come down on the anti-abortion side, you might even roll your eyes. For years, anti-abortion activists and their conservative media outlets have characterized pro-choice protestations as hysterical and melodramatic. When we warn of the right’s ultimate goal of outlawing a currently legal and safe medical procedure, we are branded as feminazis and leftist radicals. “Abortion restrictions are meant to protect women,” is an often heard defense.

Well. We told you so.

Women and girls will always have abortions. The question is whether they will endanger their lives to do so. Before Roe, self-induced or ‘DIY’ procedures were frequent as being the oft-labeled, “back alley abortions.” Medical school flunkies often offered their services to “take care of the problem” and yes, their services sometimes led to death and near-death situations. However, depending on the source, it is expected that criminalizing abortion or severely restricting it, will not result in an increase of maternal deaths. Why? Because emergency room medicine has advanced significantly in the last five decades. Doctors are able to stop internal bleeding much easier than pre-Roe, the most common complication of an unsafe procedure. Moreover, there are several known over the counter medications that with a little luck, usually do the trick without significant side-effects.

I hope you see the ridiculousness in this counter-argument. “It’s highly unlikely that a woman will hemorrhage and die from internal bleeding because science has provided emergency room personnel with better coagulants.” Or, “the internet has given women the gift of knowledge; simply search for ‘self-induced abortion’ and within milliseconds, you will have a long list of options, including some found under your kitchen sink.”

Protecting women’s health my ass.

Finally, criminalizing abortion could lead to the very real possibility of imprisonment. While the Alabama law only targets those performing abortions, I can envision a world (see below) in which women are held accountable for terminating a pregnancy or being investigated after a miscarriage. To anyone rolling eyes or considering me hysterical, remember – an Ohio bill currently under consideration by the legislature would ban private insurance companies from covering abortions (a violation of ACA regulations) and raises the real question of how ectopic pregnancies (never viable and always dangerous) would be regarded. Once an embryo is deemed “life” under the law, any number of hideous laws could be passed (especially if state legislatures remain staffed by cranky, old, [mostly white], men). These laws are becoming more draconian, not less. State legislatures seem to be in competition over the extent to which one can infringe upon a woman’s right to privacy. Oh – and to terrify us.

How apt might you be to go to the emergency room after a botched abortion if you know a criminal investigation will follow? Whether the mother is held responsible or not, there will be every effort to identify and charge the provider. Coagulants only work if they are available. I’ve not heard of many over the counter options to stop a woman from hemorrhaging out on her kitchen floor.

Stricter regulations and outright bans have dire economic consequences – and not just for women

Aside from the obvious hazard to women’s health, criminalizing abortion could have devastating economic consequences to women and their families, particularly those already below the poverty line and those of color. It is this argument that anti-abortion activists never want to discuss, preferring to stick with the safe “immorality” of taking human life and the subject of late-term abortions. Oh, and my current Presidential fave, “post-swaddling infanticide.” Coming from the guy who was likely in bed with another woman at the time of his children’s births, that one is rich.

I understand why activists do not want to discuss the economic impact of banning abortions or regulating the shit out of them. Why? Because once the true ramifications are known, the true reason for their efforts become clear. Interested? You should be. Read on.

It was no coincidence that the laws governing sexual behavior were challenged in the 1960s. This was the cultural revolution; demonstrations against the Vietnam War and for civil rights morphed into what was for many general protestations to the Puritan 1950s. Free love, free sex, and flower children coaxed a rather sheltered generation into a sexual revolution. The old rules did not apply. What was once done behind closed doors could be openly discussed and even encouraged. Sex, drugs, and rock & roll were the norm. (As it turns out, a quick study of the 60s & 70s indicate that this was nothing of the sort. There were many Boomers who retained their parent’s moral outlook, went to class, studied, and got a job. Not everyone was a hippy. But there was still a lot…and they were on TV).

Most important to this post and current actions against Roe, were the Supreme Court cases of the 60s and 70s that led to a very visible and successful women’s liberation movement. Here come the bra-burners!! (And might I just add: to anyone who may refer to ‘bra-burning’ as being part of some nefarious, communist plot to destroy capitalism…I dare you to wear one. Once. You’d burn the damn thing too).

While the Rush Limbaugh’s of the world have long since labeled women’s libbers “radical feminazis meant to destroy the family and send every woman to war,” the reality was quite the opposite. We wanted economic security for ourselves and our families. Sure, there were those who spouted and advocated for the destruction of white patriarchal society. They had their reasons. But most women in the generation before mine wanted to take care of themselves. Women, in order to achieve that so desired and necessary security blanket, had to have the ability to control their own reproduction system. It was that simple. At that time, there were no laws protecting women in the workplace. We could be fired for getting pregnant. We could be denied employment because of pregnancy. Moreover, even if we were able to keep our jobs through pregnancy, there was no guarantee that employment would continue post-natal.

And we have not even discussed childcare, salary, or access to health insurance.

Women in the workplace. Who did that threaten? Mmm – it’s becoming clearer.

At this point, you should understand how the liberalization of sex laws (and there were many more that I’ve left out) and reaction against morality legislation was central to the advancement of women in the labor force. If not, you need to think harder and connect the dots. Without access to birth control, women had virtually no control over her own reproductive organs. Millions of Boomer women had studied and attended universities only to see their job and career prospects disappear once they said: “I do.” Thousands more found themselves impoverished if they got pregnant outside of marriage or found themselves widowed or otherwise deserted. A woman’s right to control her own reproductive and economic destiny was the key.

Griswald was the beginning. The Moral Majority was the end.

The rise of Jerry Falwell’s Moral Majority and the politicization of evangelicalism constituted the response to the chaos of the 1960s and 70s. It was not hard to predict: looking back at the tectonic shift in cultural and societal norms, a resurgence of 1950s values and mores were all but guaranteed. Its successful fusion, however, with the neo-conservatism of post-Cold War foreign policy and a well funded puritanical libertarian economic theory was not. Once this coalition came together, legislation and public policy meant to restore the social hierarchy of a previous era became the Republican party platform.

The coalition’s ultimate objective was opaque; it was easy to find international enemies, against whom we needed to defend ourselves. By clamoring on about non-existent welfare queens, it was equally simple to turn the middle class against the poor and thus, the social safety net. “My tax dollars should not go to help lazy people who refuse to get a job.” Affirmative action became reverse discrimination and besides, as Nixon articulated, “After the Civil Rights Act of 1964 and Voting Rights Act of 1965, we have eliminated the legal barriers to black equality.” Did we really need all of those expensive taxpayer-funded programs?

But there is no greater evidence of a manufactured moral crusade cloaking efforts to restore the white man to his rightful social position than the timing of the “pro-life” movement. Abortion had been legal for nearly a decade without wide-spread controversy. It was not until an increasingly conservative and southern Republican Party joined forces with the growing Christian evangelical movement that reproduction became political. It is no coincidence that evangelicalism spread throughout the south at the same time the Supreme Court found segregation unconstitutional. Old barriers separating genders, classes, and ethnicities came down. Egalitarianism was in our midst. There had to be a reaction and restoration of those in danger of losing political and social power. And there was.

Fortunately, the rise of originalism in constitutional law helped produce the conservative courts we have today; all primed to close the loop on liberal and social progress. Law schools across the country pumped out attorneys who later became judges trained to interpret the Constitution exactly as the Founders intended (or how they believed the Founders intended). If our founding document and its amendments did not enumerate it, it did not exist.

The right to privacy has been in the cross-hairs ever since. And with it could go all of the personal privacy rights we take for granted, whether or not they relate to child- bearing.

That is why you should care about Alabama. The stakes go well beyond a single medical procedure.

Why I care about Alabama

Roe has been especially at risk since the 1992 Supreme Court decision Planned Parenthood v. Casey. In the ruling, SCOTUS established the ‘undue burden’ litmus test for state regulation of abortion. Since Casey, states have the right to regulate abortion prior to the 22nd week of gestation as long as it does not cause the mother an “undue burden.”

What’s the definition of an “undue burden?” It is subjective. Waiting periods and parental notifications did not cross the line but clinic location and hallway width do. Since Casey, the courts have chipped away at the reproductive rights established under Roe, and with it has relegated poor women to the proverbial “back of the bus.” In some southern states, there is only one abortion provider and it can be located hundreds of miles away and outside public bus routes. Already impoverished, the lack of access to reproductive options just exacerbates generational poverty, especially in minority communities. (And so we are clear: we talk about abortion in this post. But it has also become much more difficult for poor women to obtain inexpensive birth control. Regretfully, some girls would never learn how babies are made if the local clinic did not provide programs to educate them. We cannot assume that everyone took sex ed or practiced wrapping a dick by putting a condom on a banana).

Good one, huh?

Middle-class women, however, regardless of skin color, have the means to deal with an “almost undue burden.” We have the money to travel long distances, or even to another state, in order to have an abortion. We can afford the required waiting period and care is covered under private health insurance. Minor inconveniences are tolerable and intrusive requirements (mandatory ultrasounds) avoided with a simple plane ticket.

Control over my reproductive system is a question of freedom. Without that control, I am at risk of economic uncertainty, whether I am a breadwinner or contributor to the family finances. How can I be free if I’m unable to decide when I become a mother? A baby is not a pet – you cannot take them back to the store when you realize feeding and cleaning is too onerous. Why should I have to carry this risk, simply because I was born a girl?

Financial or economic freedom extends to my family. Unplanned pregnancies result in lifelong commitments; commitments that could prevent frequent visits or elderly parent care. Pregnancy may impede additional education; degrees necessary for career advancement and higher income – exactly what is needed to better support a family. Alabama and other highly restrictive anti-abortion laws – meant to force SCOTUS to revisit Roe, are a threat to my freedom. And they are a threat to yours – regardless of your gender.

The purpose of government is to protect individual rights. It’s a vast responsibility and in this country, we the people get a choice in how we are represented. An overwhelming majority of Americans polled believe that abortion should be safe and legal. Even self described “pro-life” advocates believe that there should be exceptions for rape, incest, and the life of the mother.

It is unfortunate that reproduction has become politicized. By doing so, it is easy to call out the hypocrisy of those passing these draconian laws. At the same time that they make it harder for me to raise a family (by criminalizing and limiting reproductive options), they could give a shit about helping women once the baby is a living, breathing, human being. These same pro-life advocates vote for candidates that support slashing public spending for healthcare, education, and welfare programs. For God’s sake, in 2017 the Republican-controlled House, Senate, and White House allowed CHIP (the ‘Children’s Health Insurance Program,’ to run out of funding. This is a bi-partisan supported and popular program that provides health care to kids. It went without funding for months. Force women to have unwanted children, but take no responsibility in helping take care of those who need it the most.

Oh – and those that promote adoption can stop now. Sure – that is a potential solution to a post-birth problem. In no way does it address the issues associated with the pregnancy itself. You can give your child up for adoption, and remain impoverished and without education. Moreover, making that suggestion is the ultimate insult. The government forces a woman to have a baby she does not want or have the ability to care for, and then solve that problem by suggesting that she give it away while her post-partum hormones rage. It’s just cruel. (No – I’m not suggesting that the government forces women to give up their children. I’m suggesting that women suffer from that decision, a decision that could very well be worse than suffering from an abortion).

The slippery slope

I think it’s fair to provide you, the reader, with a bit of insight into my own view so that you can weigh the argument against my bias.

While I sympathize with the evangelical opposition, my faith tells me that abortion is not murder – nor is it immoral. I’m quite confident in this assessment and have been for decades.

I decided I was a Democrat because of abortion. In high school, a friend became oddly and vocally pro-life. I say “oddly” because, in the late 80s, the only “controversy” in high school was whether your parents would let you stay out past curfew. She became very interested in the topic – and she talked about it a lot. Therefore, I thought about it – a lot – and determined that there were several scenarios in which I might seek an abortion. In that second, I became pro-choice, liberal, and a Democrat. Easy.

Christian faith did not get in the way. In fact, I have always felt justified in my liberal views. God may give life, but He does not intend for every potential life, to become life. If he did, women would not have miscarriages. In fact, a lot of tragedy would be readily avoided if God intended for every egg to become a living, breathing, human being. I think folks take “God’s Will” a little too far and use it to justify or explain why bad things happen. Believing that everything in life happens according to your deity of choice’s plan, removes human responsibility for said “bad thing.” Yes, weather patterns have become more volatile due to human-exacerbated climate change. God didn’t tell us to release noxious fumes into the air; in fact, He told us 50 years ago to STOP doing that and to put up solar panels.

But again, I digress. You can be a Christian and have an abortion without fear of divine retribution or hell.

I’ve been told that my view would change when I had my own children. I always found that argument a little insulting. Of course, children alter your world view. We all have the right to change our minds. But I knew my own mind then and now; while I’ve never birthed a new life, I’m relatively confident that my pro-choice position would remain constant had I had kids. Perhaps more important: even if it changed, I would not think it was my right to impose my new view on others.

In short: abortion should be safe, legal, and regulated like any other medical procedure. If parental consent is not required for a D&C, then why would it be necessary for an abortion? Why should I be forced to have a uterine ultrasound before signing the consent papers? Do you realize how expensive that is? And do not get me started on notifying the father. Some may consider my view support for “abortion on demand.” Okay. I guess I support abortion on demand.

The vast majority of women do not use abortion as birth control. I’m sure a few do and of course, you know all of them. But by and large – abortions are relatively rare in this country. You can thank access to birth control – and even Obamacare – for that.

It’s against this backdrop, that I consider the slippery slope. If the state can force me to carry a baby to term, what is to stop it from banning all contraceptives? If the court finds Roe to be unconstitutional, what about Griswald? What else might the state legislate if the court decides the right to privacy is not implied in other enumerated amendments? Fans of The Handmaid’s Tale will quickly recall the Republic of Gilead and the horrors it produced. Fiction, yes; but given the right circumstances, at least partially possible.

More likely is the ever increasing income and wealth gap, particularly between whites and people of color. If I find myself in need an abortion, and I happen to live in Alabama, you can be sure it’ll be performed by a doctor in a safe and clean facility. To the extent possible, my own economic security, employment, and mental health will be preserved. But I am in the minority. Far too many women will find themselves in impossible situations with little choice and thus, limited opportunities to better themselves and their families. Control over our bodies is a requirement to enjoy the freedom and liberty guaranteed by America’s founding principles.

Put more bluntly: To all of you men and women voting for these laws – get over the perceived loss of power and position, grow a pair and get your fucking hands off my uterus. Don’t like abortion? Don’t have one. Problem solved – even for the Godly.

Whether you are of childbearing age or not, the Alabama ban on abortion (and other recently passed restrictive reproductive laws) is an assault on your freedom and that of your family. We are not being melodramatic and we are sure as hell, not radical fanatics. We are human beings with responsibilities and dreams. Reproductive freedom is a human right. You would think that America would be the first to protect it.


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