Undue Burdens: Abortion and Paternalism

The 5th Circuit Federal Appeals Court heard arguments today to determine whether the Texas law that requires abortion clinics in Texas to be ambulatory surgical centers is constitutional.  If upheld, the law would cause 80% of abortion clinics in Texas to close, which would mean many Texas women would have to travel hundreds of miles to procure an abortion, as reported by NPR.  Many of the women affected are poor, many are Latina, some are undocumented.  For many, their only source of healthcare is their local Planned Parenthood.  I know this because I used to live in the Rio Grande Valley, one of the places where the local abortion clinic would have to shut down.  That clinic is not a Planned Parenthood, but the local Planned Parenthood was forced to unaffiliate itself from Planned Parenthood even though it did not perform abortions because the state was refusing to fund low-income women’s health from clinics affiliated with organizations that do abortions.  I give this background to question the state’s argument that it wants to require abortion clinics to be ambulatory surgical centers because it cares about women’s health.  If it cares about women’s health, the state of Texas would expand Medicare and fund the Women’s Health Program to all providers of low-income women’s health.

What is at issue in this case is whether it is an undue burden on women to have to travel more than 200 miles to obtain an abortion (it’s 238 miles from McAllen, TX to the next closest clinic in San Antonio).  The Supreme Court has held that states can restrict abortion if those restrictions do not present an undue burden on women.  The Supreme Court upheld the vaginal sonogram law which required women seeking an abortion to have a vaginal sonogram 24-hours before the procedure, so they seem to have a strange sense of what counts as an “undue burden” if requiring my doctor to put something inside my vagina that I don’t want there and that my doctor doesn’t think is necessary isn’t an undue burden. (Linda Coleman, an Alabama state senator, who argued against the bill in her home state, was quoted in the New York Times arguing, “If you look up the term rape, that’s what it is: the penetration of the vagina without the woman’s consent.”)

The standard of “undue burden” is dependent on the perception of the judges who  determine whether a law presents an undue burden.  If those judges support and protect a patriarchal society (the two women and one man on this panel were appointed by George W. Bush, and yes, you don’t have to be a man to further the patriarchy), they would have a hard time perceiving laws that limit women’s reproductive choices as an “undue burden.”*   In his book Racism Without Racists Eduardo Bonilla-Silva argues that we are in an era in which no one will admit to being racist, but racism still structures society.  I think there is something slightly different happening with regard to sexism.  Many people will make blatantly sexist claims unapologetically (ie. they aren’t even trying to code as they do with regard to race).  But they don’t want to be called sexist; they want to claim to be protecting women.   And so here we have a clear example of how the law appealed to for protection ends up under the cover of ‘protection’ exerting its paternalistic and oppressive power.  This situation is especially complicated when the women most affected are poor and brown and the men doing the ‘protecting’ are white and rich.

We are in really fraught territory when we determine whether decisions can be made by legislatures about women’s health care if it is not an “undue burden.”  Yes, it’s a good thing that doctors can no longer decide without a woman’s consent to perform a double mastectomy while she is under anaesthesia – paternalistic medicine has been replaced by generally agreed views of patient autonomy.  But when the Court decides that it can paternalistically intervene in that autonomy and it can determine what is an undue burden (on the patient’s side, not the undue burden on the doctor), we seem to be stuck in a patriarchal circle that there is no way out of.  If patriarchy wishes to keep woman in her place–less well paid, less educated, less powerful, with fewer opportunities and more obstacles to changing her situation–then it seems that it will judge no burden “undue” in its effort to keep her there.

*Lest you say that women can limit their capacity to reproduce long before they are pregnant, I would suggest that that is not always the case.  If women don’t have access to birth control and if they don’t have control over their bodies so that they can try to restrict sexual contact to certain times of the month, then they don’t have these choices. This point needs to be made because the arguments about how the freedom is before conception seem to conjure some privileged oversexed white teenager, but not to see the poor women of all backgrounds in controlling relationships where they don’t feel like they can limit access to their bodies.

Photo credit Mario Leal, McAllen, TX