Her Body, Our Laws Read online

  To Hermana Peggy O’Neill of Suchitoto, El Salvador, and to the women of Birth Choice, Oklahoma City, Oklahoma, and Access Women’s Health Justice, Oakland, California. Across many divides, you are kindred spirits, seeing with the heart, laboring always toward the good.

  And to the memory of Beatriz Garcia, who died October 8, 2017, at age twenty-six, from complications of lupus and from the particular cruelty with which the forces of poverty, class, education, power, and gender collided to shape her destiny.

  As a woman, I have no country. . . . As a woman my country is the whole world.

  —VIRGINIA WOOLF, Three Guineas

  CONTENTS

  Author’s Note

  Introduction

  1 Beatriz and Her Case

  2 Assessing the Impact of El Salvador’s Abortion Ban

  3 The Reddest State: Oklahoma’s Long Battle Over Abortion Law

  4 The Abortion-Minded Woman and the Law

  5 America After Roe

  Conclusion: Parting Thoughts on Leaving Behind the Abortion War

  Acknowledgments

  Notes

  Index

  AUTHOR’S NOTE

  I interviewed scores of people over the course of this project, taping some conversations and taking copious notes in all cases. For the sake of readability, I’ve related some of these encounters as dialogues, complete with quotation marks. Although the ideas and words I use are faithful to the speaker’s comments, as recorded in my notes, the dialogues themselves are not direct quotes nor should they be read as such. (Original interview notes from Marina, and from all others mentioned in this book, are on file with the author.)

  In this book, I refer to people by the terms they use to describe themselves. I do so out of courtesy for their integrity, and also because I do not think it is constructive to wage a battle over abortion by name-calling. For this reason, I use the terms “pro-life” and “pro-choice,” rather than the terms each side often uses when referencing the other.

  INTRODUCTION

  I am a collector of stories about women’s dark secrets. In my work as a law professor, I’ve studied pregnant women who abuse drugs. I’ve written articles about postpartum depression and the law, and authored two books about mothers who have killed their children.

  I’m compelled by the despair at the heart of these stories, propelled by a belief that if we understand why things go wrong, we will find ways to stop them from happening.

  To be sure, there’s also a prurient aspect to my fascination. These stories are deeply entwined with sex, after all, and stories about sex are almost always interesting.

  In retrospect, it’s clear that my fascination with these sad stories began years ago, in my freshman year of college, when I started volunteering at Planned Parenthood. I’d gone there by myself to get fitted for a diaphragm. It felt like the first truly adult thing I’d done in my life: getting contraception. The women there were kind, and they reinforced my sense of having crossed over into not only adulthood but also womanhood.

  Every Saturday morning, I crossed the picket lines for my four-hour shift with the women in the abortion clinic’s recovery room. There were six recliners in a semicircle around the table where I sat, arranging crackers, juice, and pamphlets describing various forms of family planning. My job was to make sure no one left without contraception. We half-joked about never wanting to see them again.

  Women choose abortion for a multitude of reasons, and yet, a sense of desperation is almost always present among them. The decision to end a pregnancy arises in response to the circumstances of one’s life. The stories the women told me, as they rested before resuming their lives, were as varied as they were poignant.

  I listened to their descriptions of the forces that shaped their decisions, making the abortion seem right, or even inevitable. I could see the way those same forces shaped my own life. Money, love, safety, shelter, health. . . . One experiences each of these things in an intensely personal, direct way: one has more or less, enough or nowhere near enough of them to thrive. But the way these forces come together in the crisis of an unplanned pregnancy lets you see them in stark relief.

  The women’s stories made visible the things that were going right in my life—the things I relied upon in order to make my way. Their tales were cautionary ones: their lives often seemed ordinary, too. Their stories could easily have been my own. Through their stories, then, I came to understand the way women experience vulnerability around sex.

  Perhaps I intended to make a political statement by choosing to volunteer at Planned Parenthood. Yet, what I remember most about the work, which I did off and on in my twenties and thirties, has little to do with an explicit feminist agenda. It wasn’t my politics that kept me going back to the clinic, week after week. I kept coming back because the women’s stories populated my imagination, shaping my understanding of how it is to be a woman. I mean that their stories showed me the “most obvious, important realities,” which, as David Foster Wallace notes in his parable about fish in water, are often the ones that are hardest to see.

  There are two young fish swimming along and they happen to meet an older fish swimming the other way, who nods at them and says, “Morning, boys. How’s the water?” And the two young fish swim on for a bit, and then eventually one of them looks over at the other and goes, “What the hell is water?”1

  After I finished law school, I went to work at Loyola, a Catholic university in Chicago. It was there that I first came to know, at more than a superficial level, people who spoke openly of their deep moral opposition to abortion. I began teaching medical ethics, thriving on the difficult conversations, fascinated by the variety of opinions sparked by the stories around which I structured discussion.

  It was the 1990s, and the media were consumed with pregnant women who used illegal drugs. Fear of a generation of crack babies animated the public imagination. The news stories evoked images of mostly black women who were portrayed as slutty and irresponsible, busy chasing their high rather than getting clean, if only for the sake of their unborn child. The solution, to some, was to prosecute them for child abuse.

  The stories I knew from the abortion clinic were filled with the messy reasons why women have sex without contraception, even though they do not want to get pregnant. My hunch was that the truth about pregnant addicts was more complicated. I began collecting stories from drug rehabilitation centers, from doctors, from child abuse experts, and from the women themselves.2

  It turned out that sex and drugs went hand in hand. Female addicts get pregnant because sex plays a central role in how they get the drugs they need. They have sex for money, they have sex in exchange for drugs, they have sex with their dealers. For many addicted women, sex has been part of the way they navigate their risky world since they were children. Female addicts are survivors of immense violence and trauma. Studies estimate that somewhere around 70 percent of them have been victims of childhood sexual abuse.3

  Most drug-addicted women don’t use drugs because they like to party, but rather because they want to be numb. Their responses to pregnancy are complicated. Unlike the callous depiction in the media, these women often want to be mothers. Actually, they want to be good mothers. Many see in a baby the prospect of unconditional love, of a new beginning, of a positive identity for themselves as mothers. Many already have lost children to the foster care system. They know the risks of losing yet another child if they continue using drugs, yet still they hold out hope that their unborn child might provide the change they so desperately want.

  True, some of these women lack access to abortion, either because any money they have goes to feed their addiction or because they don’t recognize their pregnancy until it’s too far advanced for an abortio
n. But the bigger problem underlying the 1990s crisis of perinatal addiction was not that these addicts didn’t have access to abortion, but rather that they didn’t have access to drug rehabilitation programs. Their cases were too complex for programs developed for single men, too fraught with risk of harm to the fetus and potential liability. The overwhelming majority of drug treatment programs didn’t accept pregnant women.

  Once I understood their stories, it seemed obvious to me that prosecuting them wouldn’t solve the problem. What we needed was an approach built upon our knowledge of addiction, one that paved a path to recovery.

  It was 1992. The abortion war was raging in the United States. There were battles over parental notification laws, over clinic protesters, over the timing of viability. The US Supreme Court replaced Roe v. Wade’s trimester approach with the Planned Parenthood v. Casey decision, which created the “undue burden test.” So long as they didn’t create too much hardship for women seeking to exercise their constitutional right to terminate an unwanted pregnancy, states could use their power to encourage women to carry to term.

  The battle intensified. Both sides argued with righteous indignation, appalled at the immorality or hypocrisy of their opponents.

  As a law professor, I followed the legal debates closely, reading every decision. The struggle over abortion—the war—is deadly serious. Yet, the noisy debate over abortion law didn’t seem all that connected to my research. That is to say, abortion’s legal status didn’t make much of a difference in the lives of pregnant addicts.

  Abortion law was even less relevant to the new set of stories I’d started collecting: those of women who killed their children. It seems only logical to infer that a mother who kills her child must have been someone who wanted an abortion but, for some reason, couldn’t get one. But it turns out that’s totally wrong. These cases are complicated in ways that have almost nothing to do with abortion.

  I began noticing news reports of mothers who kill following a call I received from a small-town defense lawyer seeking medical-legal experts to help defend a teenager accused of killing her baby by delivering it into a toilet. The girl claimed she didn’t know she was pregnant. Over the next several years, I noticed so many similar stories that I began collecting them.

  The Internet, even in its infancy, made it possible to track news items from around the country. I began searching for articles. I wanted to understand how a girl might conceal her pregnancy and what would make her deliver her baby at home, in the toilet. I felt that understanding why these cases happened would help me formulate my ideas about how the legal system ought to respond. I found hundreds of news stories. I met with doctors, spoke to experts, and ultimately interviewed women in prison for this crime.

  I’ve spent decades studying these stories. They are messy and varied, but one thing is certain: these cases don’t involve women who wanted to terminate their pregnancies but lacked access to legalized abortion. Instead, they involve stories like that of a sixteen-year-old whose case came my way. Eva was living with her uncle and his fiancée after her mother told her there wasn’t room in her apartment.4 Starving for love, yet certain she’d have nowhere to live if she had a baby, she spent the months waiting for someone to notice she was pregnant. No one said anything—not her father or stepmother, who later said they’d suspected she was pregnant, nor her mother, nor her friends, to whom she’d confided her predicament. In the end, she had her baby alone, on a toilet. The baby drowned.

  When we spoke, I asked Eva why she didn’t have an abortion. It was legal, and she could have consented without her parents’ permission. It wasn’t that she lacked the money, she said. Her ex-boyfriend had even offered to pay for it, before he stopped talking to her. But she didn’t want an abortion. She didn’t want to kill her best chance at feeling connected and loved.

  The same desire to be a mother—to be a good mother—surfaced when I was researching mothers imprisoned for killing their children. Working with Dr. Cheryl Meyer, a psychologist and lawyer, I interviewed forty women in an Ohio prison for having killed their children. These women were incarcerated for crimes like beating their children and then failing to take them to the hospital in time, or standing by while their boyfriend beat their child to death.

  Yet they bristled when asked whether they’d considered having an abortion. They wanted to be mothers. Most of their babies were simply victims of the chaos in their mothers’ lives. The mothers didn’t wish them dead. Most began our conversations about the child they’d been convicted of killing by saying, “Being a mother is the single most important thing in my life.”

  I was coming to believe that, for the most vulnerable and marginalized women, abortion’s legal status hardly mattered. There are women who live with a chaos so profound that despair predates the unplanned pregnancy. Women for whom the notion of a planned pregnancy is itself almost meaningless.

  The abortion battle has always raged in the background of my research. In the early twenty-first century, it grew louder, as lawmakers showed their opposition to abortion by enacting a broad swath of abortion-related laws.5 As a law professor, it seemed to me that I should have been more engaged by the battle over abortion laws. But the sad stories I’d spent a lifetime gathering made me a skeptic about the hyperbolic promises of “choice” and “life.”

  I thought of a woman I met in prison for killing her two-year-old child. She’d begun raising her four younger siblings at age nine, because her parents were addicts. My hunch is that by the time she became pregnant, at fourteen, no amount of access to safe, affordable abortion would have tugged her to safety.6

  The abortion debate doesn’t concern itself with stories like hers; it ignores the lives of pregnant addicts. Yet, the lives of these women are circumscribed by norms and laws governing sex and motherhood. How much, I wondered, did it matter if abortion was illegal?

  In 2008, I went to Chile to try answering this question. At the time, Chile had the world’s strictest law against abortion—making it a crime in all cases, without exception. I wanted to learn whether banning abortion shaped the circumstances or frequency of cases involving mothers who kill.

  I had clear expectations about what I would find in a country that outlawed abortion. I imagined that, in addition to tragic stories surrounding US mothers who kill, I would find cases of women who were driven to their crimes because they couldn’t get a legal abortion.

  I knew the studies of what happened in the United States, before legalized abortion. There would be hospital wards overflowing with women who had septic shock or had perforated their uteruses by trying to induce abortions with hangers.

  Once I got to Chile, though, I became distracted. Nothing looked as I’d expected. There were no hospitals filled with women injured from illegal abortions, no epidemic of cases involving women who abandoned their newborns to die.

  I shifted from worrying about mothers who kill their children to trying to understand what was going on with abortion in Chile. I found law professor Lidia Casas, a prominent Chilean lawyer who has devoted her career to challenging Chile’s abortion ban. She explained that the ban was one of the final acts of the brutal dictator Augusto Pinochet when leaving office in 1988.

  “Perhaps he wanted to leave a legacy other than having ordered the killing of tens of thousands of his political opponents,” she suggested with a grim smile.

  His legacy seemed to be intact. Other than Casas, no one seemed terribly interested in changing the law. Every day on my way to the subway, I passed the Castrense Cathedral, adorned with a plaque from 1994 that read “To the Memory of Children Assassinated Before Birth.”

  With Casas’s help, I began making sense of how the abortion ban worked in practice. I met Dr. Ramiro Molina, director of the country’s only adolescent health clinic, located within a public hospital that serves Santiago’s poorest residents. When I asked him to tell me about unplanned pregnancy and abortions in Chile, he said, “Abortion is a non-issue in Chile. You can buy abortion dru
gs on the street anytime you like.”

  The abortion drug most widely available in Chile is misoprostol. It’s only part of the formulation of the more effective abortion drug used in the United States. Even so, taken alone and within the first twelve weeks of a pregnancy, misoprostol will bring on a miscarriage in 90 percent of cases. Unless the bleeding is severe, there’s no need to see a doctor.

  I asked him where women found the drug. He opened his computer and plugged “misoprostol” into a search engine. Thousands of vendors appeared at the click of a mouse.

  In spite of its being completely against the law, abortion in Chile is commonplace. Because it is illegal, estimates of how many abortions take place every year in Chile vary widely. But all agree that tens of thousands of women have abortions there every year.7

  In contrast to the stories from US history, or from places where medical abortion is largely unavailable, in Chile the high rates of illegal abortions don’t appear to have led to high rates of maternal mortality.8 In fact, experts agree that fewer women die from illegal abortions now than they did fifty years ago, before the ban.9

  If abortion remained commonplace in spite of being illegal, I wondered how the abortion law was enforced. Who gets prosecuted for the crime of illegal abortion when tens of thousands of women have them every year?

  As both a defense lawyer and a law professor, Casas knew the answer. She’d studied prosecution patterns since the ban took effect and found evidence suggesting that prosecution rates declined, rather than increased, in the years since the abortion ban took effect.10 Furthermore, when the state prosecuted women or doctors for illegal abortion, Casas’s research showed that conviction rates were low and punishment was light.

  What was the purpose of the law, I wondered, if it wasn’t going to be enforced? As an answer, she introduced me to her former client, Marina.